United States v. Louisiana – Oral Argument – October 13, 1959 (Part 1)

Media for United States v. Louisiana

Audio Transcription for Oral Argument – October 12, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Earl Warren:

Number 10, Original, United States of America, Plaintiff, versus States of Louisiana, Texas, Mississippi, Alabama and Florida.

Hugo L. Black:

Solicitor Rankin.

J. Lee Rankin:

Mr. Justice Black, may it please the Court.

In view of the fact that the question of what the boundary was that the Congress was trying to provide for and its intention and purpose in this Submerged Lands Act is so crucial to a consideration of this case and to what the States received under the relinquishment or grant.

I’d like to deal with that first in a number of different situations.

First, I would like to call your attention to the Act of the Republic of Texas, its Boundary Act of 1836 on page 340 of the Government’s brief.

If you recall, throughout the argument in the briefs, great emphasis is placed upon the fact that the Texas claim is based upon the assertion in that statute of what its boundary is, what it was from 1836 on.

That was the action of the Republic of Texas.

And I want to particularly call your attention to the language that from and after the passage of this Act, on page 340, the civil and political jurisdiction of this Republic be, and is hereby declared to extend to the following boundaries.

That is not terminology for any special kind of boundary, any special submerged lands idea, any special smuggling idea, any special idea or concept of boundary that has been discussed in the States’ briefs at all.

That is the description of a general, political boundary for general jurisdictional purposes, like the United States is contending Congress intended.

And that, in their own language, they described it for what they intended to be to give them civil and political jurisdiction for that Republic, and that is the fundamental basis of their claim.

Any place you look, if that statute was void and if they had never passed it, I think you’d find that their claims evaporate in thin air.

But they have described the kind of a boundary, and they proceed to talk about it at great length throughout the debates.

I hope you’ll bear with me a little on calling your particular attention to language from the debates, because I think in this argument, it will be more clearly understood if you don’t have to rely just on my claim as to what — or the other side’s claims, as to what the debates were about.

But if we review here at least a portion, I can’t cover it all this time, of the statements made by the parties, keeping in mind that these statements were made in order to try to defeat the attempt to amend this Act so as to reduce it for all our purposes, to three miles.

So that in no event could anyone get beyond three miles, and it was to meet up with that kind of a contention that they represented time after time that this Act did not give any State, anything whatsoever, and I’ll read the words of the people that they say where the draftsmen and Senator Holland, Senator Daniel that represented Texas, Senator Long that represented Louisiana, Senator Cordon, who was the manager of the bill in the Senate.

Time after time after time, they said this bill does not give any State anything.

And they also said —

Hugo L. Black:

Do they deny that ground?

I didn’t know there was any difference between here on that point.

J. Lee Rankin:

Oh, I think the briefs are pretty strong about that and —

Hugo L. Black:

I thought they were saying that it didn’t give them anything because it’s hard that they had those boundaries to the extent they talked about denying the three leagues and therefore nothing was given by the Act.

J. Lee Rankin:

Well, if —

Hugo L. Black:

What they were — the right they had in it and the power over it and the ownership of it were simply recognized.

I thought that was their argument.

J. Lee Rankin:

Mr. Justice Black, if that is their position now, the — the United States is pleased to have it, because it simplifies the problem, because then it resolves itself to a question of whether they legally did or legally did not, at that particular time, —

Hugo L. Black:

Well, I get it.

J. Lee Rankin:

— have such boundaries.

Hugo L. Black:

If that’s the difference, I think maybe I understand it.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Hugo L. Black:

Maybe they concede, I am not sure, from the opinions it had that legally the State did not own it at that time, but that what they wanted to do, Congress — what they insisted the Congress should do was to grant to the State that which they had always owned or claimed to own the authority.

J. Lee Rankin:

Well, that’s the distinction I am trying to make, Mr. Justice Black, between — the Congress, time after time, they said, “We are not asking that this bill shall give us what we claim.

We tell you, we represent to you, this bill does not give us what we claimed.

It gives us what we have, what we can prove we have as a matter of law, and nothing more.”

Felix Frankfurter:

Well, they didn’t — they couldn’t have had that because this Court said they didn’t have it.

J. Lee Rankin:

Well, but they contended that they had a boundary.

They had boundaries they said, and that’s why they used that terminology.

Felix Frankfurter:

Mr. Justice — if I understand Justice Black said, what he puts to you that they said, “We’re not fighting the old ground.”

They couldn’t.

I mean, they couldn’t overrule, the Congress can’t overrule.

It can make ineffective decision of this Court but can’t overrule it.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And after the California and Texas case, there were determinations by this Court that the State had no proprietary or exploitive right in the contested territory.

What Justice Black is putting to you is whether the claim was or the contention was that there were certain historic boundaries as to which this Court said, “We don’t care really of what they were.

This is not a problem of proprietorship.”

That’s the essential holding, isn’t it, of California and Texas.

J. Lee Rankin:

Yes.

Felix Frankfurter:

This is not a question of ownership.

When the Government submitted its decree to this Court and put its ownership, this Court wouldn’t accept that inclusion in the decree.

That’s written.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And therefore, they couldn’t have said, “We owned it,” without saying, the Supreme Court of United States’ decisions are defunctive or the decisions rather don’t exist and we overruled it.

Is this nearly a question of — of phrasing between you and the question put to you by Justice Black or is it more than that?

J. Lee Rankin:

Well, I hope not.

Felix Frankfurter:

They said we revert to what we call for, we use the language of the discussion, the historic fact.

These were the boundaries.

Essentially, the Supreme Court said that’s immaterial for the controversy between the State and the Federal Government’s right to exploit these — these interests, and now a different question arises, namely, whether the United States should forego that — which the Supreme Court had given them.

J. Lee Rankin:

Yes, Mr. Justice Frankfurter, but the problem was it was suggested to the Congress by the Government that they had — there was no question of what they have the power to say, “We’ll draw a line, and we’ll give the States the rights, we’ll give them a quick claim to everything within that line.”

And I wouldn’t stand up here for a moment and tell you they couldn’t do that.

They have that power.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

But they didn’t do it.

They didn’t want to do it.

They used a different formula for political reasons and not improper reasons either.

They thought there were certain equities involved if they had legal existing state boundaries to a certain point.

So they took that formula, and I am not saying that they were saying then that they’ve set aside the orders and the decisions of this Court in the submerged land cases at all.

They weren’t — they said they were not doing that, but they were making a grant, and they chose as a basis for that grant whatever the legal existing boundaries were that the States have.

Now, there was no question in any of the —

Felix Frankfurter:

Was that what they claim?

The difference between you — correct me, Mr. Solicitor.

They claimed whatever their existing boundaries were when that issue becomes relevant.

They say, it’s one thing, and you say it’s another. Congress didn’t do something for the State, didn’t it?

J. Lee Rankin:

Yes.

Felix Frankfurter:

And it laid down criteria by which that something was to be made concrete, and that’s the contest between the two sides.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Applying the — the terms with the criteria by which something was to be done for the State, you say the result is one thing, and the States say it’s another.

J. Lee Rankin:

Well, but I say it, Mr. Justice Frankfurter, the result is one thing because it’s like taking two and adding two to it, you’ll get the four.

If you take — and I don’t mean this is that simple.

But if you take the legal boundaries, those are discoverable according to law.

Nobody questioned of whether the States had boundaries even though they weren’t entitled to one particle of oil or minerals —

Felix Frankfurter:

But there is —

J. Lee Rankin:

— one each.

Felix Frankfurter:

— but there is a difference between you and, let me say, Texas as to what the Texas boundaries were when tested by the criterion of the statute existing at the time, isn’t it?

J. Lee Rankin:

Yes, there is.

Felix Frankfurter:

Well, isn’t that what the controversy is about?

J. Lee Rankin:

Well, there is the difference that they claimed that the test, as I understand it, is not the legal existing boundary.

And I am trying to demonstrate that regardless of anything else, the Congress intended and these particular representatives of the various States in the Congress represented that what they were dealing with was the measure of illegal existing boundary.

Now, in —

Felix Frankfurter:

Let me — let me make it still more specific.

Isn’t the difference between you and them that they accept your criteria legal, but they gave a content to what is a legal boundary different from the content you give it.

J. Lee Rankin:

Well, if that is the case, Mr. Justice Frankfurter, I would say that the debates preclude them from any such contention because —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Felix Frankfurter:

That is from the contention that their content is the statutory content.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Well, I understand that.

J. Lee Rankin:

Now, in — on page 55, Mr. Cordon, Senator Cordon who is the —

Hugo L. Black:

In your brief?

J. Lee Rankin:

Yes, in the Government’s brief, who was in charged of the legislation in the Senate said the States of the United States have legal boundaries.

It is not a part of the power or duty of the Congress to make determination with reference to those boundaries or where those boundaries should lie.

It is a matter for the courts to determine or for the United States through Congress and the legislative organizations of the several States to reach an agreement upon.

The pending bill does not seek to invade either province.

It leaves both exactly where it finds them.

Whenever a question arises as to boundary, it will be determined exactly as any other question of law is determined.

And the boundary will be established.

The pending measure does not seek to prejudge that issue or to determine it.

It is not within the province of Congress to change the present boundaries of Texas without the consent of Texas.

Then on page 379, Senator Daniel, in Government’s brief, says what kind of boundaries they’re talking about.

This proposed legislation would treat all the States alike, both inland and seaward, by continuing in effect, one rule of state ownership applicable to all lands beneath navigable waters within state boundaries.

Now, that says — it treats the inland and the seaward States exactly the same.

This is fair treatment to every State.

The State of Wyoming, is it possible that the State of Wyoming with a landward boundary all around it could have one kind of a legal boundary and then you could stretch that boundary someway?

According to the arguments here for — because there was smuggling or because it was claimed that you could explore mineral out there into the — the State that were adjacent like Colorado.

Felix Frankfurter:

But this statute does certainly make it clear that Congress thought that one State might have three miles and another State three leagues.

J. Lee Rankin:

Well, they were giving them the chance to prove that.

Felix Frankfurter:

Yes.

But I mean that the legal possibility that one State may have a larger boundary than another seaward is certainly contemplated by the statute, isn’t it?

J. Lee Rankin:

The United States concedes that.

Felix Frankfurter:

Well, I —

J. Lee Rankin:

And if they could prove to you by the criteria set down in the statute and in the debates of what the statute meant, what the real intent of Congress was that under legal principles, they had a boundary of three leagues, they would certainly get it, and we would concede it.

Felix Frankfurter:

I suppose that’s why we’re having 13 hours of argument.

J. Lee Rankin:

Yes.

It is the problem of this case.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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Felix Frankfurter:

Approve or disapprove it.

J. Lee Rankin:

But I’m trying to develop that it is a legal question.

Felix Frankfurter:

Yes.

J. Lee Rankin:

And — and they were dealing with what boundaries — legal boundaries are.

Hugo L. Black:

May I ask you?

J. Lee Rankin:

Yes.

Hugo L. Black:

I don’t quite understand.

You’re not telling the power of Congress to give one State more than another.

J. Lee Rankin:

Not at all.

Hugo L. Black:

That’s correct.

J. Lee Rankin:

That’s right.

Hugo L. Black:

You don’t rely on the equal footing provision at all.

J. Lee Rankin:

Not at this point.

There is a — a consideration on rearguing our briefs.

Hugo L. Black:

I understand, but what you are saying is that although they have a right to prove it, they can’t prove it, because they said it was the legal boundary, and the Court had already established the legal boundaries of three leagues at — at one — three — three miles.

J. Lee Rankin:

Well, I didn’t find anything —

Hugo L. Black:

That seems to be what you’re arguing.

J. Lee Rankin:

Mr. Justice Black, I didn’t find any cases where this Court had ever decided that the boundary for the gulf in particular was only three miles.

In the U.S. against California, the Court said that there was a three-mile boundary that the United States had recognized, the maritime boundary and so forth.

But addressing itself —

Hugo L. Black:

But then if you didn’t do that, are you — are you urging that although the Court had not decided that the legal boundaries so far as the Government is concerned was three-mile, that is the truth that no evidence can be offered in dispute that legal truth.

J. Lee Rankin:

Well, I — I go farther than that.

I go as far as that is the truth, and then I say that the legal evidence that both sides produce, which — of which this Court take judicial notice is such that it establishes clearly in favor of the United States that there was no boundary beyond three miles.

Hugo L. Black:

Well, then, may I ask?

There was no boundary, no legal boundary or that there never was any.

J. Lee Rankin:

Never was any legal boundary beyond three miles.

Hugo L. Black:

What is the difference between here then?

Do you — do you say that they did have a provision before the act went in effect —

J. Lee Rankin:

Yes.

Hugo L. Black:

— that they had civil and political jurisdiction for nine miles.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

Yes.

Hugo L. Black:

But you say that does not represent the — did not represent the boundary at that time to which Congress was referring, is that it?

J. Lee Rankin:

That’s right.

It was not effective under the law to make them a boundary projecting beyond three miles.

That is the position of the United States.

Hugo L. Black:

Because what?

Because of what reason?

J. Lee Rankin:

Because in the first place, the United States had a policy of three miles in its foreign relations as a maritime boundary that did not recognize for any country in the world including Texas.

Hugo L. Black:

Then how could — how would it be possible for them to prove to do that if Congress has said some of the States might be able to do this.

J. Lee Rankin:

Well, they claimed that they had occupied that area long enough so that it was valid under —

Hugo L. Black:

But you say they couldn’t.

J. Lee Rankin:

— international law.

Hugo L. Black:

That’s impossible.

J. Lee Rankin:

Well, but Congress didn’t decide whether it was or was possible for them to prove it.

It left it for them to establish in court.

Felix Frankfurter:

So the question is open.

J. Lee Rankin:

Well, yes.

They can prove if they can in — during these arguments that there was — that the three-mile boundary of the United States did not, as a matter of law, preclude them from having three leagues.

If that’s possible under the law —

Hugo L. Black:

But as I —

J. Lee Rankin:

— it’s open for them to try.

Hugo L. Black:

— understand that you’re arguing it’s not possible.

J. Lee Rankin:

That’s right.

Then they still have another point.

Felix Frankfurter:

Well, may I ask before you go —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— to the other point.

It’s not possible to — Justice Black put you that that’s right.

It’s not possible from your point of view because the matter has already been adjudicated or because according to the relevant evidence by which legal rights will establish the (Inaudible) the relevant evidence whether through testimony or through documents or judicial notice as a conclusion based on that evidence before a tribunal, the tribunal would have to find such as the boundary and not something else.

Is that it?

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

The latter.

Felix Frankfurter:

All right.

J. Lee Rankin:

Now, I do — I do —

Felix Frankfurter:

So that we are in the realm of evidence, whatever the — the whole range of evidence, whatever may be deemed relevant evidence, and not in the realm of determination either by the Congress of the United States regarding the conclusion or by this Court as a matter of adjudication, is that right?

J. Lee Rankin:

I can’t answer that yes or no.

I have to clarify in this regard.

The — United States recognizes that if in 1845 in admitting Texas into the Union, they had said, so that there won’t be any argument about the fact, “Texas from this date on shall have three leagues in the Gulf.”

The Congress had the power to make that policy regardless of what the policy of the other branch of executive was.

It did make it.

Texas had three leagues.

It’s just that simple.

Now, if they could prove that, we wouldn’t be here, but that isn’t the fact.

Now, as to the others —

Felix Frankfurter:

And the opposite isn’t the fact except on the argumentation of foreign policy nor the other consideration.

J. Lee Rankin:

No.

There is some very important facts —

Felix Frankfurter:

Yes.

But not —

J. Lee Rankin:

— in regard to the admission, the joint resolution to be considered too.

Felix Frankfurter:

But would you disagree that all those other important facts of what I call ademption.

There’s no determination by the Congress and no adjudication by a court for what we are discussing, isn’t it?

J. Lee Rankin:

I would concede all of that, I would concede all of it.

I — I think that in United States against California, the Court did say, the maritime boundary of the United States is three miles.

I do not rely upon that for the United States in this case.

I call it to your attention, but I do not think you examined the question of the Gulf at that time.

I don’t think Congress felt that you examined the question of the Gulf at that time, and I don’t think that concludes you.

If you should find from all of the evidence, and I do want to call attention that — that the United States insist that one of the facts of life and of this Republic is the foreign policy of the United States throughout the years.

But I am not saying that Secretary can say black is white or that white is black.

It’s — it’s got to be what it really was, but if the Secretary says, I think that’s a fact that you have to take into consideration and apply it in applying the law.

I don’t know whether I’ve clarified or made it more difficult.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

What I am — I am trying to point out, the fact that the boundary was the test, the question is whether they could prove it, and I think everything, when you boil it down, you’re going to find in this litigation that it all — there is one serious case, and that’s Texas.

And you’ll find that the only question is whether or not the United States did, in fact, approve a three-league boundary in 1845.

And if you will read the debates, you’ll find that’s what Senator Holland said, time after time was the test.

Texas would have to prove the acts that it did before which consisted of this statute that it adopted while it is a Republic.

It would have to go further than that.

It would have to prove that the — the Congress of the United States approve that.

It said, “And time after time, both of those things were necessary.”

And unless they did it, they don’t get three leagues.

I think it’s just that simple when you get through.

And I was trying to eliminate these ideas about different kinds of boundaries because I don’t think they can be urged in good faith in this Court.

I think it was said so many times and urged in trying to get this legislation pass that what they were talking about was legal boundaries, legal existing boundaries that that really isn’t open to any question in this Court properly.

So you finally get down to the question of whether or not the — the Congress of the United States did in fact place the stamp of approval on a three-league boundary for Texas in 1845.

And the United States think the evidence is very clear, it never did, that it was afraid of every Texas claim of boundary and protected the people of the United States in the joint resolution that it passed deliberately, purposefully and carefully and the very language of it.

So that there is nothing —

Hugo L. Black:

What protection?

I don’t quite understand that.

What was the protection that the people of the United States will come on boundary of —

J. Lee Rankin:

It — it’s —

Hugo L. Black:

— more than three miles?

J. Lee Rankin:

It didn’t fix the boundary in any way in exact terms in the joint resolution.

It said that we take in the territory of the Republic of Texas which is properly within and rightfully belongs to the Republic of Texas.

And then it said, “It reserved the right to,” the word wasn’t compromise, “adjust the boundary with any other country.”

Now, that was after debates of a long time in the Congress in which all kinds of questions were raised about the fact that Texas didn’t have any lawful claim under international law to great areas that they were asserting under this boundary statute.

And they deliberately put that language in so that they could reserve the right in dealing with not only Mexico but all other countries of the world as to what the boundaries were properly belong to them and rightfully belong to them under international law, and it is so stated.

So they protected this very thing and did not accept it.

I don’t mean that you should accept that all on my statement.

I am going to demonstrate that before this argument is through upon Texas.

But that is the point in this case.

James P. Hart:

Mr. Justice Black, may it please the Court.

The Solicitor has elected to pitch his case against Texas on the proposition that this three-league boundary shrunk when it came in the Union and we join the square issue with him on that on the facts.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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James P. Hart:

When the Congress of Texas sat down to — in 1836, December, it passed that Act.

It was looking at several things.

Things that were most conscious of was the Treaty between Spain and United States in 1819 which called to fix the boundary, the Louisiana boundary between Texas and Louisiana.

And it called to commence on the Gulf at the mouth of Sabine in the sea.

So the most — the first thing they had to consider was that they — the boundary calls commenced in the sea.

Now, the second thing they had to look up at was that in 1811 and 1812, the state boundary of Louisiana had been fixed by an act of Congress first, carving out the territory and then it made a mistake.

And so they look at that description which was a matter of law and that description called to commence at the mouth of the Sabine goes around Louisiana and call for all islands within three leagues.

So that were two things they had to look at.

Now, if they had heard anybody to look at letters of the Secretary of State in fixing boundaries, they could have looked at the letter that — that Mr. Jefferson wrote when he was Secretary of State, the 1790 — 1793 letter.

And what did that say?

It said, first, that the greatest distance to which any respectable set among nations has been given is human sight or 20 miles.

It said second, that the smallest distance is a canon shot or three miles.

It said, third, three leagues has some authority in its favor, and it says fourth, that we ought to call a convention of the nations to fix — to fix the maritime boundary.

And said that we will reserve the right to fix our maritime boundary but tentatively and for the time being, we are fixing it at three miles, and they said three leagues has got a card in its favor.

So what did those people do in writing that Act.

They did a logical thing.

They commenced in the sea as the Treaty command them.

They tied on to the Court of Louisiana.

They concedes it to be which was three leagues and Jefferson had said that three leagues had some authorities favored, so they thought they were within the policy of the United States and we say they were.

Now, the next fact in these series of events which you’re looking at for the annexation is the recognition of Texas by the United States.

Now, there was a great public interest at that time.

The conscious of the Nation had been shocked by the massacre at Goliad and the — the tragedy of the Alamo.

And the people had been elated by the victory of San Jacinto.

The whole spirit at the time request for an expansion and the whole attention of the country was concentrated on these events going on along the frontier.

And so, on December the 19th, they passed this Act.

Now, we’ve just had a visit from the President of Mexico.

At that time, they had another visit from another President of Mexico, Sta. Anna.

The President of Mexico has brought a prisoner of war and appeared before Jackson and his cabmen.

The only time in the history of United States, that’s happened and discussed this very question of the boundary of Texas.

It was a question of great public importance.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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James P. Hart:

It was debated all over the country and the whole country knew about it.

And it passed this Act and they gave it wide circulation.

Jackson was charged by his opponent.

He was being — having denied with Sam Houston his friend and — and protégé to bring about this Texas revolution.

And so Jackson was cautious in recognizing Texas.

He waited some six or seven months.

And then on March the 3rd, just before his term expired, the Senate passed a resolution authorizing to recognize Texas and there appoint an agent.

And on March, the — that was on March the 1st.

On March the 3rd, which was the last day of his great administration, a turbulent administration, won the grace from United States as the last official act of that administration.

At 11 o’clock in the evening, he called in the people from Texas to the agent and — and have a glass of wine and recognized Texas.

That’s the last thing he did.

And at that time, there was no protest, no diplomatic protest of this — this Act.

And we say that’s a positive evidence of United States foreign policy.

The normal way for a country to formalize its foreign policy and leads matter just by diplomatic protest.

And there was none.

And we say that’s evidence that this Act did not violate the — the foreign policy.

The next event of any consequent was the authority of annexation attempt in 1838.

After the — after that recognition, the people of Texas, by a general vote, voted to come into the Union, and then there was an abrupt change of climate, a public opinion all over the United States, because Texas was injected into the called over a debate our slavery and slave territory.

And so — and this — a second thing involved this Texas Boundary Act, and that was that it had claimed a part of what’s now used to be Mexico, the old Spanish town of Santa Fe.

And so the opponents of annexation argued that it was an expansion of slave territory that it involved a certain war with Mexico.

And that generate one of the most heated political controversies this country has ever gone through.

Congress was covered up with — with petitions, memorials, resolutions.

One Congress had said they were measured by the cubic feet on its desk.

Over 600,000 signatures appeared from the congressional records against the — the annexation of Texas.

Ex-president John Quincy Adams, then a member of Congress and the leading architect of our foreign policy up to that time, (Inaudible) from June the 16th, July the 7th, every morning until Congress adjourned and he himself killed annexation at that time, and that no — at that time, there was no protest of this Act although it had been woven into all of these debates because of this question of the — of the — going north into — beyond the Missouri compromise lines.

The anti-slavery — the post slavery people said this would bring in free as well as slave territories.

The anti-slavery people said, “Well, the — the free territories barren mountains been headed by wild Indian tribes.

And — so that was a matter of public debate and that Texas Boundary Act was known throughout the United States at that time.

Now, the next consequence — that of any consequence of the fact to be considered was the 19 — 1830 Boundary Convention.

The Act itself, the final clause of it, if you’ll notice, commanded the President of Texas, to call for a convention with the — with United States for the purpose of putting that to be in line on the ground, and that was done.

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James P. Hart:

The Texas Boundary Commissioner was instructed to follow the Texas Boundary Act, in that they had a treaty.

They had a joint commission appointed.

Mr. Hunter Miller, at page 136, I might — might say that — that this record here is the official record of the State Department published by Hunter Miller is — is the — the last words so far as United States and everybody else is concerned on — on diplomatic foreign policy.

Mr. Hunter Miller says the boundaries of Texas, as claimed by the Government has thus described in the instructions of March 30 — 21st, 1830 from (Inaudible) and Secretary of State, Memucan Hunt.

Memucan Hunt was the — the boundary commissioner.

Hugo L. Black:

What are you reading?

Page 136?

James P. Hart:

This is from —

Hugo L. Black:

Well, it’s not in here.

James P. Hart:

— Miller — no, sir, it’s — it’s cited but in here.

This is from Miller, a Hunter Miller’s book.

The Treaty is in documents of United States.

The present boundaries of Texas as fixed by an act of Congress are as follows.

Beginning at the mouth of Sabine and running west along the Gulf of Mexico, three leagues from land to the mouth of Rio Grande and it goes on around says — and Hunter Miller says, “That description of the boundaries of Texas must be taken almost literality from the Texas Act of December 19th, 1836 to define the boundaries of Republic of Texas.

Is that cited in your brief?

James P. Hart:

Yes, sir, it is.

What page is it?

James P. Hart:

Page 106.

106 — 136, page number (Inaudible).

Now, that Boundary Commission met.

They had a dispute there.

The — the Treaty, the 1819 Treaty called for the west bank of the Sabine.

The Louisiana State Act called for the middle of the river and Texas Commissioner went over that contending for the middle of the river and the United States held him to the terms of his own boundary act which calls for that treaty in the west bank of the Sabine.

And — and we say that at that time, there was no protest, no diplomatic protest of the three-league provision and that is evidenced that it did not violate United States foreign policy.

In 1844, annexation was revived.

It was revived by the policy of England.

England who was following the divide and conquer policy, and they have — they sought to erect a buffer state between United States and Mexico to go from Texas west to the pacific and to include the northern tier of Mexican states.

And the — the problems of Texas became the number one foreign relations problem of the Tyler Administration and dominated.

Senator Walker, who was a pawn of annexation, wrote a propaganda letter of which over 50,000 copies were spread all over United States and he got 2200 replies he said.

I want to review briefly the politics of that time.

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James P. Hart:

Clay, who was the absorbed and obtained a nomination of the Whig Party did it on a platform against the annexation expressed to Van Buren with seeking a nomination of the Democratic Party on a platform against annexation, Polk, a dark horse sought the nomination of the Democratic Party on a platform favoring annexation.

And Tyler, the incumbent president, who had been repudiated by his own party, sought to organize a third party on the motto of Texas and Oregon.

Polk and Clay and Tyler run it all, Jackson intervened, persuaded Tyler to get out, and — and they went on and — and Polk won on the basis of annexation.

Daniel Webster said, in — during election, it’s either Polk and Texas or neither Polk nor Texas.

(Inaudible) wrote a poem to arose the abolitionist and so on.

And in that presidential campaign, this country turned one of the corners in its history.

It debated the policy of western expansion and it — it decided on the policy of western expansion.

So that with Polk selection, the doctrine of manifest destiny and the western expansion became a dominant foreign policy of the United States.

Can I ask you a question?

James P. Hart:

Yes, sir.

In the argument that you’re making, are you accepting the view of the Government that the kind of a Texas boundary that you have to show historically was one that recognizes the territorial waters in Texas that extended the three-league?

James P. Hart:

We distinguished between territorial waters and boundaries, Your Honor.

We say this Act did it but it didn’t have to.

A nation may renounced part of its territorial waters apart of its — what it gets under our boundary.

We say this Act established a valid boundary three leagues at seas.

Territorial water boundary?

James P. Hart:

It — it did.

Yes, sir.

It didn’t have to, but it did.

Well, that’s what the Government claims it didn’t and that’s what the Government claims that it’s essential for you to show in order to bring yourselves within the SLA.

James P. Hart:

We — we defer with them.

We say if we establish a boundary, state boundary even though it’s not within the State’s functions to establish territorial waters, if we establish a valid state boundary that we’re entitled to it at all.

In other words, what you are arguing at the moment is that you can show that the United States, despite its general policy as to three-mile and it’s recognized a territorial boundary, territorial water boundary in the Gulf of Mexico of three leagues.

James P. Hart:

Mr. Justice, we contend that the United States did not have a three-mile exclusive policy at the time.

And then we argue that it actually established a three-league boundary in the Gulf.

We think the evidence of that infatuates that.

Felix Frankfurter:

You qualify (Inaudible) the Gulf, didn’t you?

James P. Hart:

Yes, sir.

Now, let’s focus —

Felix Frankfurter:

There’s already — there’s already a part of (Inaudible) absolutely three miles governed everything all the boundaries of the United States (Inaudible) from the Gulf.

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James P. Hart:

Yes, sir.

Felix Frankfurter:

(Inaudible)

James P. Hart:

We establish that with one —

Felix Frankfurter:

— unless the Government is right, three miles covers all the territory of United States.

James P. Hart:

Yes, sir.

Now, focusing on the — on the very act of annexation in — in response to Mr. Justice Whittaker’s question yesterday, the very answer to annexation, I want to go over the — the time process.

The Texas Commissioner to negotiate annexation were instructed both the limits of Texas being defined by Act of Congress, you’ll be governed by the — that Act in specifying its boundaries.

The annexation process started on March the 1st, 1845, when the — the Act — Solicitor has identified with the adjustment clause, and it was passed.

On March the 18th, 1845, Polk — Polk had named a man named Donelson as his agent accomplished annexation in Texas.

Donelson wrote and told, “It was upon Houston, he mainly relied to carry the annexation in Texas.

And then on April the 12th, Donelson had written Polk about Houston, says, “I left him under full conviction that if the adoption of our proposal of (Inaudible) upon his voting would be lost.”

On March the 5th — May the 5th, President Anson Jones called an — by executive proclamation for a convention on July the 4th, the purpose accepting annexation and adopting a — a state constitution.

And on June the 6th, 1845, President Polk wrote to Houston urging him to support annexation and — and this — this calls about adjusting boundaries had bothered Houston.

And so he wanted to know what kind of adjustments they were talking about.

And so President Polk wrote to him this.

“You may have no apprehensions in regard to your boundary.

Texas once a part of the Union, and we will maintain all your rights of territory, and we’ll not suffer them to be sacrificed.”

I mentioned the question of your boundary because you allude to it in your letter.

I assure you that it will be my duty as it will be my pleasure to guard your interest in that respect with vigilance and care.

Hugo L. Black:

What particular boundary (Inaudible)?

What was the (Inaudible)?

James P. Hart:

The main bone of controversy was between Nueces River and the Rio Grande.

They were not particularly concentrating on the seaward portion of it.

But they did — they did allude to the whole line.

Potter Stewart:

Who — what was the percentage (Inaudible)?

James P. Hart:

He was out of office but his —

Potter Stewart:

He’s a private citizen.

James P. Hart:

He’s a private citizen but a dominant political figure and his former —

He was a former president.

James P. Hart:

He was a former president and his man was then president (Inaudible).

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James P. Hart:

Polk carried out his promise to Houston.

In writing to his agent, Polk said to Donelson on June the 15th, of course, I would maintain the text and title of the extent he claimed it to be.

On June the 23rd, the Texas Congress met, passed a joint resolution concerning the annexation and ratifying the call for constitutional amendment.

On July the 4th, that — that convention met, passed an ordinance accepting the annexation, went to work on the Constitution.

It was completely late August and on the second Monday of October, they held a general election in which the people approved annexation a new state constitution, and that came back on December the 29th, U.S. Congress a joint resolution was passed.

And on February the 16th, a small ceremony in front of the little Log Cabin capital, the republic flag was pulled down and United States flag went up.

Now, here is one of the most important documents I am coming to it in the chain of title.

On December the 8th, which was that same year, President Polk, in his second annual message to Congress, dealt with this very question of what territory came in — with about Texas.

He was truly concentrating on the dispute with Mexico there between the Nueces and Rio Grande.

But here’s what he said in his congressional message, he said the Congress of Texas, on the 19th of December 1836, passed an act to define the boundaries of the Republic of Texas.

And then this is important.

He said, “This was the Texas which by the act of our Congress of 29th of December 1845 was admitted as one of the States of the Union.”

And we say that under the authority cited by the Solicitor, that was a — an executive determination of a political question made at the time by the President’s Office which is binding and covers this matter.

Potter Stewart:

Now, where was that — where does that statement appears?

James P. Hart:

In the — in the Polk’s second annual message of Congress.

Felix Frankfurter:

Would you mind reading that sentence, this was (Inaudible)

James P. Hart:

This was the Texas which by the Act of —

Felix Frankfurter:

This was the Texas.

James P. Hart:

This was the Texas which by the act of our Congress of the 29th of December, 1845 was admitted as one of the States of our union.

Now, the next event is the war with Mexico.

Felix Frankfurter:

And how this —

James P. Hart:

Sir?

Felix Frankfurter:

This was Texas (Inaudible).

Now what is that — where — what was the (Inaudible) to define.

James P. Hart:

We’re here to say, he had already referred about (Inaudible) of the heading.

He referred to this Act of 1836.

He identified it in his message.

Felix Frankfurter:

So that Texas incorporates from your point of view —

James P. Hart:

The Act.

Felix Frankfurter:

(Inaudible).

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James P. Hart:

Yes, sir.

Now, the next thing was a — was the presidential message declaring war.

We say that if you’re looking for evidence of foreign policy, the — the supreme evidence of any foreign policy is a declaration of war.

And the message would be the — the best evidence of what it was.

So in President Polk’s message, declaring war on Mexico, a year or so after its annexation, said the regress of the wrongs of citizens naturally and in separative mends itself with the question of boundary.

Your settlement to one question and correct you to subject involves out of the other and then this.

The Congress of Texas, by Act of December 19th, 1836, had declared the Rio — Rio Del Norte to be the boundary of Texas and this message of war he referred to this very Act, Solicitor says (Inaudible), as far as the maritime boundary.

And he says the couple of full variance has been exhausted.

And he goes on and he says that Mexico has invaded American territory and shed American blood on American soil.

Thomas Jefferson Green, who was the author of the Act in the Texas Congress, records that he later on discussed this with — with President Polk and said President Polk had little out of legal international rights to the bank of Rio Grande.

He complimented me for my happy thought and being the author of said law and said without it, he never would have move up to that line.

Now, we come to Guadalupe Hidalgo at the end of that war.

And again, we say this is an act of foreign policy that is absolutely controlled of everything else in the case.

Polk had written to Sly Bell who was his first agent to negotiate the Mexican boundary claims that he should follow this Act and he identified it by name and date of everything.

And then he appointed to Mr. Trist who is the chief clerk of State Department to negotiate Guadalupe Hidalgo.

And he instructed Trist that he was to prevail upon the Mexicans to agree to the line established by the 1836 Texas Act.

And then the Texas Legislature passed a resolution instructing their senators as follows, that our senators be further instructed to oppose any treaty with Mexico, which may provide for resting the boundaries of Texas as establish by an act to finally bound of Texas approved December 19th, 1836.

And Article 5 of the Treaty resulted.

And it says that the dividing line between the two Republics shall commence in the Gulf of Mexico three leagues from land and further from Rio — Rio Bravo.

Now, on that, I want to join issue with the Government on what they say about that Act.

They say that Act just goes out.

It doesn’t bother anything.

Now, any lawyer knows that a boundary divides territory.

If it doesn’t divide territory, it’s not a boundary, just an act sticking out there.

This is something why you just make a tight rope, walk out and back and you can’t step off either sides.

And we say that they had a good reason for putting out there.

The reason was that the Texas boundary was out there and Polk knew it, he’d referred to it constantly, he had instructed his men to follow it and he did follow it.

And he went out and tied on to a corner.

He tied onto the corner of the Texas Boundary Act.

Now, boundary has to close.

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James P. Hart:

A boundary just doesn’t go sticking out there, it has to close.

And — and he closed it by this.

And we say that’s inclusive of the Government’s case that the — that United States adopted and — and put into effect the three-league boundary in the Gulf.

And if you look into foreign policy, you look to the President’s declarations, his messages to Congress, you look to his declarations of war, and you look to the treaties approved by the Senate.

And there you find the foreign policy and it’s a three-league boundary for Texas and the Gulf.

Hugo L. Black:

You’re referring to (Inaudible)

James P. Hart:

No, sir.

All of this is documented.

It’s all historical.

Hugo L. Black:

Is there anything (Inaudible)?

James P. Hart:

Well, if you’re free with your interpretation of judicial knowledge, the best historical work on this, I want to call the Court’s attention on the annexation.

If I — Professor Justin H. Smith of — of document of Congress, and he has made a detailed study and a very accurate and documented study of this whole subject of annexation.

That’s very good.

Now, if you can take judicial knowledge of that kind of history, there’s no — there can be no argument about how you prove the facts.

Now, the very step in the negotiation of this Treaty —

Potter Stewart:

Along the line of Mr. Justice Black’s question —

James P. Hart:

Yes, sir.

Potter Stewart:

— the United States of America (Inaudible) that be denied, asking on at least alternatively, that this Court (Inaudible)

James P. Hart:

Yes.

Potter Stewart:

(Inaudible)

James P. Hart:

Well, we — we say that — that our facts we think are so conclusive that we — that — that if we were in the District Court, we would be entitled to instruct the first, but we’re not certainly entitled to a back line on this question of foreign policy of facts.

Potter Stewart:

Well, you also ask me for summary judgment in your behalf in your prayer?

James P. Hart:

It’s been so long since we made a prayer, Your Honor.

I forgot. I — I think — I don’t remember.

[Laughs]

Potter Stewart:

Well, it wasn’t entirely clear to me as to — as to whether he shouldn’t (Inaudible).

James P. Hart:

He’s starting —

Potter Stewart:

— or whether he had — need to —

James P. Hart:

He makes it now —

Potter Stewart:

— which the Government has.

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James P. Hart:

— but we hadn’t made it before, we’ll make it now.

Felix Frankfurter:

(Inaudible) if you’ll make it in the alternative —

James P. Hart:

Yes.

Felix Frankfurter:

— in answer to Justice Black’s question, you said that — assuming judicial notice, that’s what I’ve assumed you would say was an allowable sweep, otherwise you wouldn’t answer (Inaudible).

James P. Hart:

Yes, that’s right.

Felix Frankfurter:

You don’t need any evidence or any — any establishment of proof.

Other than that or which can read in books or things.

James P. Hart:

All the books in the library, Your Honor.

Felix Frankfurter:

All right.

Is anything (Inaudible) my purpose really to — your question is that — that on your conception of what is proper judicial notice, the evidence is in our — we can see (Inaudible) the evidence.

James P. Hart:

Yes.

Now, in — in this — I want to point out —

Felix Frankfurter:

You’re thinking for Texas here —

James P. Hart:

Yes, sir.

Felix Frankfurter:

— because Louisiana is original, it had a different —

James P. Hart:

That’s right.

I can only speak or Texas.

Felix Frankfurter:

You — you have no such oral testimony as Louisiana does.

James P. Hart:

We don’t — we don’t have any oral testimony.

Now, the very step in the negotiation of the Treaty show that they were going out to a line and tying on to a line.

Mexico proposed three leagues off of the Nueces River.

In other words, their proposal wasn’t to come to Nueces River and go out three leagues.

United States opposed three leagues off of the Rio Grande River and they were going out to tie onto a line, that line was this Texas Boundary Act that everybody knew about.

Now, I want to read a brief with this British protest, and I don’t — we — we differ sharply with the Solicitor’s construction of that British protest.

We say that strengthens our case.

And here is the direct language of that protest, “I’ve been directed,” this is the British, “I’ve been directed the State, United States Government that in order to prevent future misunderstanding, Her Majesty’s government think it right to declare that they cannot acquiescence in the extent of maritime jurisdiction assumed by the United States and Mexico in the article in question.”

And here is the reply from Buchanan, Secretary of State, “In answer, I have to state the stipulations the Treaty can only affect the rights of Mexico and United States if, for their mutual convenience, it has been deemed proper to enter into such an arrangement, third parties can have no just cause of complaint.”

The Government of the United States never intended by this stipulation the question of the rights that Great Britain or any other power may possess under the Law of Nations.

Now, we say that that’s a positive statement of the foreign policy of United States that there wasn’t a three-league limitation in the — in the Gulf, because had there been, they would have been questioning by putting this into treaty.

And they have replied over protest that this Treaty did not violate Britain’s rights and then in spite of that protest, they went ahead and put it in the Treaty, and they put it in the Gadsden Purchase, and they put it in all these boundary commissions down through the year since then.

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James P. Hart:

And we say that that protest absolutely nails down the Texas case that in response to a protest from a foreign power, they insisted on that clause in the treaty and kept it and replied to Britain that it was no concern of yours.

Now, one good reason that that reply was good was that when Texas was recognized by Great Britain back in 1837, a copy of the Texas Boundary Act had been served on Britain at the time, and this was some 12 to 14 years later.

And they had never protest that Act.

As a matter of fact, no nation protested the Texas Boundary Act.

Hugo L. Black:

That was more than a Texas Boundary Act, wasn’t it, it was a Texas and Mexico Boundary Act?

James P. Hart:

Mr. Gadsden — yes, sir, it was.

Hugo L. Black:

So Mexico on the Gulf up to nine leagues of Texas.

James P. Hart:

They do, they assert that and are maintaining sovereignty and jurisdiction there now.

I am apparent most cannot go in there, although the State Department has protested.

Hugo L. Black:

They have protested?

James P. Hart:

Yes, sir.

Hugo L. Black:

Is that in the record?

James P. Hart:

That’s in their argument.

Yes, sir.

Now, there’s one other matter I want to call the attention of the Court.

Congress authorized the publication of a document entitled “Boundaries, areas, geographical centers and — and altitude of United States and several states”.

And that said the area which Texas brought into the Union was limited as — as follows as defined by the Republic of Texas December 19th, 1836 and then it says “Beginning at the mouth of Sabine River and running west along the Gulf, three leagues from land to the place of — to the mouth of Rio Grande”.

And then I call your attention again to the State Department map on page 111 of the Texas brief which has recognized it.

So we say that — we think we’ve absolutely nailed it down.

And I don’t see how the Court could find that boundary strongly.

When the commissioners who negotiate with the annexation were told to insist on that boundary, when the President of the United States in — in effort to pass it, assured Sam Houston that the boundary would be respected.

When they came in, when they went to war over a portion of that boundary and in the war message identified the Act and — and when the President in a message says, “This is the Texas.”

And then when the President in a treaty with the foreign nation instructed its negotiator to incorporate that boundary into the Treaty and it was incorporated and it stayed there over a protest.

We think that the strong case of foreign policies you could possibly make.

Now, on the negative side, we say, we — we say to this, that the Solicitor has not done a single piece of evidence before 1855.

It says, as a foreign policy of the United States that no nation can go beyond three miles.

We just hadn’t got it.

The first time that United States asserted that no nations go beyond three miles of 1855.

We say that Jefferson’s letter stated exact contrary.

Jefferson’s letter said, “We’re asserting a three-mile minimum, and the Nations can go further and we are reserving a right to go further.”

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James P. Hart:

And that was the foreign policy.

And so we say that the Texas Act was in — in constants with and in harmony with the foreign policy of the United States.

And it was so intended to be and it was.

And — and we say further that there’s no three-league at that time.

We prepared a table on the general international law, which appears in the back of our — our book which cites some 100 odd parts to the fact that at that time, a three-league boundary was permissible boundary.

Under the circumstances, we feel like that — that Texas is entitled to judge from this case.

Hugo L. Black:

Can I ask you a question?

James P. Hart:

Yes, sir.

Hugo L. Black:

If the Act (Inaudible).

James P. Hart:

The Act means that — and that all the — all the record therefrom, as you pointed out to us is one way on that being the fact, why did Congress leave it to the court to determine, what was left to determine by Congress?

Well, Your Honor —

Hugo L. Black:

With all the judicial knowledge and everything else, there is one way.

Price Daniel:

That — that brings us to the second part of our argument which is — which is congressional intent of Senator — Governor Daniel who was then a senator in response to this Act.

He’s going to argue and cover that part of the case.

And I’ll ask him to reply to your question as he develops his case.

Hugo L. Black:

Governor Daniel.

Price Daniel:

Mr. Justice Black, may it please the Court.

I assure you that our credibility as a lawyer and not as co-sponsor of this legislation nor as a witness.

And I shall accord to the record only in what I present to the Court.

I shall refer only to the case of Texas and to the intent of Congress with respect to Texas and its enactment of the Submerged Lands Act.

And Mr. Justice Black, I believe you will see from the record, which will be cited, that Congress did, as a matter of fact, have the very issue of how far this grant should go as to Texas and did decide the issue because it was joined in the Congress on four different occasions.

The best evidence, of course, of the intent of the — sir.

Hugo L. Black:

(Inaudible)

Price Daniel:

The issue was joined.

And I’ll come to that in a minute.

On four different occasions, on the floor — three on the floor of the Senate, one on the floor of the House.

The best evidence, of course, in the intent and effect of the Act are — is the wording of the Act itself that Congress had intended to limit Texas three miles and all the States it would have stopped at the words — after the words “three geographical miles distance from the coast line of each State.”

But it did not so intend and it did not so stop.

It went further and said that the grant should extend beyond three miles in a case in such cases where a State’s boundary, not at the time, but as it existed at the time it entered the Union, it extended beyond three miles into the Gulf of Mexico and not to exceed three leagues.

Now, the record cited in our separate briefs show that those terms were written into the Act by Congress and recommended by President who understood the facts and the history related here by Attorney General Wilson who understood that President Polk had promised Sam Houston who, although not president, the record show that annexation depended on his support.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
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Price Daniel:

And there is cited here by the Solicitor General a letter saying by the U.S. Representative that “I left Sam Houston believing he would not deport annexation.”

That was in March, I believe.

Polk, he told him to travel.

They want us to be sure and guaranteed to support the boundary set up by the Republic.

And President Polk wrote in June saying, promising Houston, as you see here on our brief from the letter of the Attorney General as quoted that “I will support these boundaries.”

What page is it?

Price Daniel:

38, I believe.

I’ll check on it.

No, that’s not the one.

You’ll find — I — I’ll get it for you in just a minute.

Now, all that was before the Congress and before the Committees.

And so, regardless of what my — be shown as to other States, this matter what boundary was intended by these wordings, it words in the Act of the Texas or certainly, pointed out to the Committees and to the Congress.

That’s on page 98, Mr. Justice Black, where the Polk’s letter is cited to Sam Houston.

And I call your attention to the facts that after that Sam Houston did support annexation, as stated, the best evidence of this intent of the wording of this Act is the intent, is the wording itself together with the fact, the undisputed fact before the Congress that Texas boundary did exist at the time it entered the Union at three leagues.

It was so provided in the laws of Texas both prior to and at the time of annexation.

The next best evidence, of course, confirming such intention of Congress at Texas, we find in the Committee Reports, this Court has held that Reports of the Committees of Congress are the most reliable evidence of congressional intent outside the terms of the Act itself.

I hold here, if it please the Court, the two Committee Reports, one from the Senate, one from the House on the intended effect of this bill.

Both Reports describe the grant as extending not the present boundaries, not the national maritime boundaries or national boundaries except the Great Lakes or to territorial water boundaries, but to historic boundaries of the respective States.

Both Reports refer to the three-league boundary of Texas as the extent of the grant of Texas under the language used and decided.

The Senate Report —

Hugo L. Black:

(Inaudible)

Price Daniel:

I am coming to that sir.

Page 7 of the Report — now, the Senate Report.

At page 7, right about the middle of the page is a table showing the total acreage that would be conveyed to the States within these traditional historic state boundaries.

And then it refers to Appendix F which you will find on page 76, and in that appendix, in the Committee Report is the acreage figured for the State of Texas as 2,444,000 acres.

Down at the bottom of the appendix — of this Appendix F, you will find the language which includes these words, “Original — only original state boundaries have been used.”

This is on page 76.

Hugo L. Black:

(Inaudible)

Price Daniel:

Do you have Report 133 of the Senate —

Hugo L. Black:

Yes, part 2.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Price Daniel:

Part 2, well that’s minority report.

Hugo L. Black:

Minority.

Price Daniel:

Yes, sir.

I’ve read it from the majority report.

Mr. Justice, in order to save time may I read it so you —

Hugo L. Black:

(Inaudible)

Price Daniel:

Well, I — I’ll leave mine with you.

Here’s what it says, “That original — only original state boundaries have been used.

These coincide with the three-mile limit for all States except Texas, Louisiana and Florida gulf coast.

In the latter cases, the three-league limit,” and this is important wording in this Committee Report, it appears to me, “in the latter cases, the three-league limit, as established before at the time of entry into the Union, has been used.”

Now, here’s a House Committee Report.

On page 57, you’ll find the same table only expressed in square — in — in square miles instead of acres.

These acres —

What page?

Price Daniel:

Page 57 of the House Committee Report on H. R. 4198, which is the same bill, that is Title II, I believe, that was passed.

Page 57.

It’s the same table except that as for — that is expressed in square mile instead of acreage.

The Solicitor General will not dispute that the acres figured here and the square miles figured here in this Committee Report are exactly what’s within three leagues from shore in the Gulf of Mexico.

If it is three miles, it’d only be one-third that much.

Now, the Solicitor General — indeed the Committee’s table, as I have said, specifically set that out that they did use the three-league measuring in figuring this acreage.

Felix Frankfurter:

Would you a take a minute —

Price Daniel:

Now, back — sir.

Felix Frankfurter:

Governor Daniel, would you take a minute and state what the common area under this table (Inaudible)?

Price Daniel:

The Reports refer to those tables as — you see they total up — both Reports, the total acreage given to the States within the historic boundaries and the total acreage that’ll be out on the outer shelf.

Felix Frankfurter:

What I want to know is did the report say (Inaudible).

Price Daniel:

Well, that certainly is in conclusion that I draw from it.

It’s certainly evidenced that that’s what the —

Felix Frankfurter:

But you must have some the language —

Price Daniel:

Oh, yes.

And I —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Felix Frankfurter:

— be hooked on to the case.

Price Daniel:

Well, in figuring the acreage covered by the bill, that’s just what they do.

Now, then, coming back to the Senate Committee Report, in the Senate Committee Report, on page 65 in Appendix E, you will find a statement which read as follows.

“Texas boundary was fixed at three marine leagues into the Gulf of Mexico at the time it was admitted into the Union in 1845 by the annexation agreement.”

Now, the same — the same language appears over here in the House Committee Report on a different page, page 43, “The Texas boundary was three leagues in the Gulf of Mexico at the time it was admitted to the Union.”

So clearly, this is evidence of what boundary these two committees were talking about when they used the word “as they existed at the time they were entered — entered into the Union”.

(Inaudible) Submerged Lands Act itself recognizes the validity of the historic Texas claim, do you?

Price Daniel:

Yes, sir, you read the — the congressional debates especially the attempt to change the Act and to provide amendments for three miles for all the States.

I believe, Mr. Justice Harlan, you will come to the conclusion that the issue was met head on the floor protects, it not just gives the chance to go to Court, it is met head on.

Texas entitled this because the President of the United States promised to defend this boundary.

And the Supreme Court of the United States in the Texas case did not dispute those boundaries.

As a matter of fact, it cited the boundaries out three leagues and said, “We assume that Texas, as a republic, had all of the land within this marginal bill but we hold that the property rights and all the political rights passed to the United States.”

Now, it was that same three leagues of land that this Court held passed by admission to the United States that Congress was restoring to the State of Texas or was granting.

We — we certainly do not contest with what it was granting Texas on the basis that we did in good faith for over 100 years thought that we owned it.

(Inaudible) considering the legislative history (Inaudible) that the effect of the Act was simply to show the matter into the Court.

Price Daniel:

Sir, the only thing I have to stand on right here is that all Senators did not say it and that the wrong impression had been left to this Court with your respected Solicitor General as to what was said in that connection.

And we have here, in the back of our brief, we’ve gone into all of the congressional records and hearings.

We’ve compiled a table here of just what they did say on the floor of the House and in the committees about these three-league boundary.

And that’s on page 235 of the Texas brief, the big yellow brief.

Now, of course, you don’t have time to — to go and read all these records.

I simply ask the Court this.

That in anything said by the Solicitor General about what was said on the floor, I simply ask that you refer to this table.

It — it covers many pages.

There are 93 separate references of the three-league for 10.5 miles for Texas as being the effect of this Act or — or in connection with the Act.

And I think that you will come to the conclusion that the Solicitor General has not fairly stated the matter as to what was said on the floor.

For instance, he used Senator Cordon’s statement a moment ago in showing that it’s just a matter to be left out to the Court and that he had some doubt about it.

Also, he cited a statement from then — then Senator Daniel.

And on page 37 of our brief, let me read the — the statements exactly as they were.

Mr. Douglas, page 37 of Texas brief, “I should like to ask specifically what is your understanding of the distinguished Senator from Oregon as to what this provision does to the boundary of Texas.

What does it mean in the case of Texas?”

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Price Daniel:

Mr. Cordon, “The Senator from Oregon, is not going to tempt the boundary of State of Texas on the floor of the Senate.

The boundary of the State of Texas is the boundary which was established for the State of Texas when she voluntarily pulled down her own flag and ran up the flag of the United States.

That boundary has not changed.”

Mr. Daniel, “It may be that the Senator from Illinois wishes to make certain that the State of Texas does not claim that its boundary, at the time of its admission, extended beyond three leagues.”

And I — the record shows that he was assured that it did not.

Then Mr. Douglas says, “Mr. President, does the Senator from Oregon, Mr. Cordon, the manager’s bill, agree with the interpretation of the Senator from Texas and I’ve said all about what our boundary was and how far it would go under this bill.”

Mr. Cordon, “The Senator from Oregon is not going either agree or disagree.

The Senator from Oregon gives his opinion that the argument seems to him to be sound but he is not passing upon the question because he does not have the power to pass on it.”

Then Mr. Cordon, “With respect to the three-league limit, there was the Treaty, the Treaty of Guadalupe Hidalgo.

Yes, the Treat of Guadalupe-Hidalgo, that Treaty recognized the boundary line extending three leagues from the mouth of the Rio Grande into the Gulf of Mexico.”

Now, I — I can’t spend anymore time on citing these but they are compiled in our appendix here.

And I do refer the Court to it if you have any question as to what was said about this Texas three-league boundary and the effect of this bill.

Now —

Do you know —

Felix Frankfurter:

(Inaudible)

Price Daniel:

I understand that in our — I hope —

Felix Frankfurter:

You are merely suggesting the (Inaudible).

Price Daniel:

I meant no offense but the 6000 pages of committee hearings and all, and that’s why we’re saying that we had gone on a great trouble to try to extract these and put them there just for comparison.

I certainly understand that.

In other words, Governor, just so that I understand, the essence of your argument is that this Act properly construed by the legislative record — legislative history, itself, in and of itself, gave these rights of three leagues in the State of Texas.

Price Daniel:

Yes, sir, and you will find both the proponents.

There were 40 co-authors of this bill.

You’ll find a statement on behalf of the proponents, Senator Holland to that effect, that it will do it and the unusual thing about this bill in the Congress is that the opponent said so to.

That was their main objection for the bill.

They wrote a letter.

Mr. Justice Harlan, they wrote a letter to the President of the United States during the 27 days of debate right in the midst of it, the 20 main opponents of the bill in which they said this bill, as it’s worthy, is going to give Texas submerged lands of 10.5 miles beyond the three-mile belt of territorial waters, and said that’s going to interfere with foreign policy.

And what do you — we think you ought to do something about it.

The State Department says and the Solicitor General says it won’t be a good thing.

It might be some conflict with our foreign policy.

The President of the United States wrote back to Senator Taft, the majority leader, saying that he had supported the conveyance of these lands up to the historic boundaries and that he supported the bill and he specifically mentioned Texas three-league boundary.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Price Daniel:

And said — and quoted a speech he had previously made in which he had recognized that Texas, when it entered, had three leagues and attempted to retain its lands out to three leagues.

That was part of the legislative history.

So that’s why I say that in the history of this Act as to Texas, you have it undisputed.

As far now as the committees and the members of Congress are concerned that the wording of the Act would go three leagues.

Hugo L. Black:

(Inaudible)

Price Daniel:

Well, I am coming to that.

Hugo L. Black:

(Inaudible)

Price Daniel:

I am coming to that.

Hugo L. Black:

(Inaudible)

Price Daniel:

The Congress —

Hugo L. Black:

(Inaudible)

Price Daniel:

Sir, let me — if I may, I’ll come to that.

Hugo L. Black:

(Inaudible)

Price Daniel:

Yes, sir, I hope that I can remove a little doubt before my 15 minutes is up.

The obvious fallacy in the Government’s argument is that the moment — the words, Mr. Justice Black, intended that — to show this are the words “the boundary beyond three miles in a case where they existed as they existed at the time a State entered the Union”.

Now, the Solicitor General talks about at the time — at the time — I’ve read you what the Committee Reports say here, he — he detracts from those Reports because they’re into the appendices of these Committee Reports but as the Committee Report itself showed, they were written by a committee considering the same language, the same bill, and they incorporated it, just like the Solicitor General has some appendices in his own brief, and I would imagine he wants the Court to consider and that’s what the Committee did with these appendices from which I read a moment ago.

He says “at the time” leaving off some very important words “boundary as it existed at the time”.

There are two past tenses there, “existed at the time the State became a member of the Union”.

Now, the fallacy in his argument is this.

He assumes that a State’s boundaries are fixed at the time the moment you come in and that you can shrink boundaries.

Of course, that’s in order to put in his unheard of theory of boundaries shrinkage by operation of the law, of not by operation of law, but by foreign policy.

Now, here’s the fallacy I think.

I’ll check the admission of all the States including Alaska and Hawaii and I say to the Court that you don’t find where any State has ever admitted to this Union without its boundaries being fixed, prior to the moment of admission until the final act of admission.

The Solicitor General has simply ignored the congressional practice which has been followed through the history of this country, of letting the people of a territory set up its constitution.

If it’s a — if it’s a U.S. territory, the boundaries are fixed usually in the Enabling Acts or in the State Constitution which is written before the State finally comes in.

Take for instance here the other day as to the Hawaiian Islands. Congress passed the Enabling Acts saying what boundaries would be admitted.

But it required the people of Hawaii to both, to change their previous boundaries and set the boundaries that were to come in and did not allow the present issue of proclamation of admission to the Union until the people of Hawaii had changed the boundary.

The whole point is simply this.

That in the practice of Congress which was certainly known to Congress when they wrote these words into the Act, it was to allow — to fix the boundaries beforehand, before the final separate Act of Admission, the moment of admission comes about.

And so clearly, there had to be some boundaries fixed and have been in the case of every State.

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Price Daniel:

Now, telling the Solicitor General to show this Court when stated where the boundaries of a prospective state were not fixed prior to the moment that the final act of admission took the effect.

Certainly, that is the case in Texas, an independent nation at the time that we came in and certainly that was the intent of the Congress to go to those boundaries fixed at the time they entered.

They had to be fixed prior to that time in a Constitution or in some enabling act or something.

Now, that was the interpretation.

That was also stated on the floor of the Senate.

On the floor of the Senate, Mr. Senator Anderson asked — Senator Anderson asked, “Why don’t you just put the historic boundaries and write them into this bill.”

He replies on page 51 of the Texas brief.

And I would not quote it here except that the person making the reply on the Senate floor was a co-manager and co-sponsor of the bill and — and gave exactly the reason the terms we used.

Starting down on page 51 about the second paragraph of the quote, now, this is in reply to Mr. Senator Anderson’s question he’s asked on page 50, “Why not simply include the term historic boundaries in the pending measures?”

Well, on 51, the Senator from Texas, a co-manager of the bill has said, “Of course, Texas boundaries did exist at three leagues at the time of annexation, and the Texas and Florida three-league boundaries were heretofore approve the Congress but that is history.

As the Senator from Florida said, the intention was the rights specifically into the joint resolution what the office had said all along would be its effect.

That it covered only and within on the historic boundaries.

The only way I know to describe the word “historic” by means of definition is to say as the boundaries existed when the respective States entered the Union are heretofore approved by the Congress.

There’s good reason, Mr. President why those words should be used.

The Supreme Court of the United States has said in several cases that the Federal Government can do nothing to change the area of a State after it has entered the Union with fixed boundaries except with the consent of the State.

There’s another line of cases which hold that if the boundaries are set out in the State Constitution such as the Constitution of the State of Florida which is approved by the Congress of the United States, then the United States cannot change those boundaries without the consent of the State.

That is why the terms “now impaired” are used.

This would — words mean nothing if they had not been spoken on the Senate floor by a committee member and by a co-manager and author of the bill.

That —

(Inaudible)

Price Daniel:

In the Report as to — only what I have read here with respect to Texas, that I recall at this time.

They were taken from court decisions, but I will say this, Mr. Justice Black, this was not challenged at all, and you’ll see in reading all these excerpt from congressional history that it was not challenged.

They are as to the — as to what the author has said was the meaning of the word why they were used.

They are taken from court decisions which have been written in cases.

This was still a reply to Senator Anderson with situation similar to the present one, and quoting still, for instance, in New Mexico versus Colorado, the Supreme Court said that the right of a State upon its admission into the Union to rely upon its established boundary lines cannot be impaired by any subsequent action on the part of the United States.

And then — and in New Mexico versus Texas, New Mexico, when admitted as a State in 1912, explicitly declared in its constitution, that was, of course, before the final Act of Admission, that its boundary ran alongside 32nd parallel to the Rio Grande.

This was confirmed by the United States by admitting New Mexico as a State with the line thus described as its boundary.

Now, that was the reply as to why use those boundaries.

And you will find that Senator Anderson later on after that in the excerpts he himself interpreted this bill as given to Texas three leagues or to some States 10.5 miles.

You’ll find a statement quoted here because Senator Anderson, it was who offered the First Amendment on the Senate floor to cut all State back to three miles.

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Price Daniel:

Then the next amendment on the Senate floor was offered by Senator Monroney.

And then it cut all States to three miles.

And he argued, “Texas is going to get three leagues, it ought to get it.”

Then the next one was offered by Senator Magnuson.

And he argued the same thing and all his amendment would have done, it was the short one, would have just trimmed everything back.

It would have stricken out all of the 171 words the Solicitor General now asks this Court to strike out in your decision, in the decision he asked this Court to make.

But the Congress — the Senate of the United States said, “No.”

And here’s the important part.

In this last Magnuson amendment, the issue was drawn on what Texas ought to get how far it ought to go under all principles of equity and justice and under this boundary which was recognized by our Presidents including the President of the United States who had written this letter.

And President Polk back there at that time and which exists in our Treaty of Guadalupe Hidalgo, as Mr. Justice Black says that Treaty, I mean brought out, that Treaty still in existence.

If you have to have a national boundary in the Gulf of Mexico at three leagues in order for best to win this lawsuit, we certainly have it.

That Treaty is still in existence and Mr. Jack Tate of the State Department appeared, he was deputy legal adviser before our committee, not by letter but so you can examine it.

And he said specifically that the Treaty of Guadalupe Hidalgo was still in existence.

The Solicitor General quotes only three words he said in his reply brief, but here is what he continued to say, “I do think,” here’s what Mr. Tate said, “The United States recognizes the Treaty as setting the boundaries between Texas and Mexico.

I do not think the State Department has had occasion to pass on the question as to territorial waters claimed by the Texas vis-à-vis of the Nation because of Guadalupe Hidalgo.”

This is very important because there, you have the State Department’s legal counsel sent by Mr. Douglas to the Committee himself drawing a distinction between territorial waters and boundary and showing that territorial waters or maritime jurisdiction can exist at a lesser distance than boundaries.

The Treaty only purports to set boundary as between the United States and Mexico.

We recognize that boundary has been set by the Treaty but I think we have not had to pass on the question of whether the territorial waters by reason of it.

In other words, he says the boundary is definite.

But as far as the rights of the territorial waters on account of our policy is an unsettled thing.

We do not agree with Mexico on it and — but Mexico is still claiming that, it’s unsettled but boundaries, these three leagues out the national boundary and as General Wilson said, it came from the Texas Boundary Act.

Now —

Hugo L. Black:

(Inaudible)

Price Daniel:

Yes, sir, it is, but the protest is only in this language.

It does not protest the three-league boundary.

It simply says, the United States reserved its rights to use the waters in accordance with its contention and foreign policy.

It does not protest the boundary for other purpose.

Now, I would like to hurry on here to say that in the — in our brief, we have a whole section on congressional intent that shows that these historic boundaries were all put in the Committee Record by the Committee Counsel with Texas being less than to three leagues.

Senator Holland on the floor used the map, stayed on the floor for weeks as shown by the record and which Texas has shown as going three leagues under this bill.

I think the clearest evidence is the fact when the issue was joined Congress voted not to limit to three miles.

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Price Daniel:

And certainly, in addition to that, we have contemporaneous construction by those who administered the bill, the Secretary of Interior as we show in the brief all these leagues form apply to three leagues to Texas.

He was given the outer shelf to administer.

All his leagues form for four years, Texas has made nine separate lease sales by public auction in this area in four years.

And we don’t have any all out there yet between three miles and three leagues, that’s the less I heard.

But those lease sales who were given to the Secretary of Interior.

He put out a statement they would not lease any closer to shore than three leagues, that he recognized Texas boundary of three leagues in his contemporaneous construction of the Act which he has to write and which Eisenhower Administration (Inaudible) to the Congress.

And the present case from contemporaneous construction that they signed the bill, that he was glad to restore, I believe he said, these lands to the States in accordance with the claims that they’ve made over the years.

And even the year this suit was filed, the President wrote the Governor of Texas saying, and it’s in our brief, “In further response to your telegram, it is my view,” This is the President of the United States in power and the Secretary of State, as I understand it in foreign policy matters.

“It is my view, Texas should have the right to explore and exploit the submerged lands extending seaward of the sections coast line for a distance of three marine leagues of the Gulf of Mexico in any action that it maybe necessary for the Attorney General to take by reason of the June 24th order of the Supreme Court.

The statements I have publicly made which bear upon this controversy will be presented to the Court as well as statements by the Attorney General which as you know accorded with my view,” and they did.

I have cited — we’ve cited in this brief Attorney General Brownell saying it would go three leagues as the Texas Secretary McKay, “which you know accorded with my own views,” I’ll leave it to the Court as to how vigorously, the Solicitor General has presented the views of the President, but I do say that Congress and the President, the policy making branch of our Government on matters of boundaries and domestic matters of this kind as to the Continental Shelf have decided this issued in favor of Texas of three leagues at the time.

My time is up, isn’t it?

Is this the end?

Hugo L. Black:

(Inaudible) as theretofore proved by Congress, doesn’t it?

Price Daniel:

Yes, we do in our brief but —

Hugo L. Black:

You do.

Price Daniel:

We — we don’t need — we can’t stress everything —

Hugo L. Black:

I — I just wondered if you are —

Price Daniel:

We do —

Hugo L. Black:

— ignoring that.

Price Daniel:

No.

We do in addition to the fact that the boundaries of this league at the time we entered, we certainly rely on the fact that Congress approved them when they took Guadalupe Hidalgo Treaty and the Senate approved that going out three leagues.

Hugo L. Black:

I just want to be sure.

Price Daniel:

Thank you, sir.

And then Congress passed, and we listed, numerous bills and appropriate and money to carry out the Sabine with that boundary of three leagues out.

Hugo L. Black:

Thank you.

Solicitor General.

J. Lee Rankin:

Justice Black and may it please the Court.

I’d like to turn first to page 52 of our —

Felix Frankfurter:

You’re taking (Inaudible) state, are you?

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J. Lee Rankin:

Yes.

Page 52 of the Government’s brief.

In recalling the statements —

Felix Frankfurter:

The original brief?

J. Lee Rankin:

Yes, sir.

Recalling the statements of Governor Daniel that he just read in regard to the meaning of the bill, you see the — some language was used with regard to this particular problem of what this bill did, whether this bill itself, without anything more, gave Texas three leagues.

Of course, Texas boundary didn’t exist at three leagues at the time of the annexation, and that Texas before the three-league boundaries were heretofore approved by Congress.

That is history.

It was not written by this bill and cannot be erased by this bill.

The purpose of this bill is to like a law of state ownership for the future.

It didn’t have to put to all navigable waters.

They used the term navigable waters within boundaries that exist heretofore as the existed at the time the States entered in Union, at the time when those boundaries were heretofore approved by the Congress of the United States.

Now, time —

Hugo L. Black:

Have you joined the issue on that statement, as I understand it, as it existed at the time the State entered the Union?

J. Lee Rankin:

Yes.

Hugo L. Black:

Do you mean that you join the issue on saying if the boundary or assertion of boundaries now that the State has (Inaudible), but it doesn’t — the boundary of the State is not decided by what it was indeed before it came in?

J. Lee Rankin:

That is our position, Mr. Justice.

It was suggesting during the argument here by Senator (Inaudible) that it was the position of the United States that the President of the United States (Inaudible) ceratin statements with regard to foreign policy could have affected this boundary.

The United States recognized that if Congress had fixed the boundary of Texas, as I have described before in the argument, and said that it was three leagues in terms that — there couldn’t be any question about that.

The President had no power to change that.

We don’t believe that under the principles of law, properly applicable to boundaries that the President couldn’t make any such change.

The question is whether the Congress did do it and if it doesn’t — if Congress doesn’t speak in regard to the maritime boundaries and say the Congress has spoken way back in 1794 about three miles, if it didn’t, the President or the Secretary of State actually as his agents can make the foreign policy of the United States to affect the maritime boundaries and he did.

But we don’t’ say that the President had any power to say that territory of Texas should be less or more when the Congress of the United States had spoken as to what the territory of Texas would be once it’s submitted into the Union.

Now, there’s been a question as to whether we were properly presenting in this Court what the parties have said in the debates about this legislation.

It is terribly important as to what was represented or said three times the Congress objected the idea of it being limited to three miles.

We concede that.

There isn’t any question about it.

We don’t say this law said they can’t have three leagues if they can prove it, not for a moment, but that was the only issue that the Congress rejected.

That was all that was involved in those amendments.

They wanted to put a bar — barrier and say regardless of what they construe of their history of the law that’s applicable, anything else that they can produce, they can’t get more than three miles, it doesn’t make any difference.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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J. Lee Rankin:

That isn’t our position before this Court at all.

If you’re satisfied that under the law properly after we’re here, they do prove that, if we were to come to the same (Inaudible), the State did have such a boundary at the time they became, not before, at the time they became a member of the Union.

The State can’t be inside and out the same time if — many things happened when it comes into the Union.

That’s the language they chose.

Now —

Hugo L. Black:

Do you have — do you deny that the argument they — they made is up to the (Inaudible) the State of Texas came into, that it accepted as a State, that it did have a boundary of three leagues (Inaudible), wouldn’t that be true?

J. Lee Rankin:

Oh, yes.

We —

Hugo L. Black:

Do you concede that?

J. Lee Rankin:

No, we — we deny it.

Hugo L. Black:

You deny that.

J. Lee Rankin:

We say that they couldn’t possibly have obtained such a boundary that was legally enforcible and valid —

Hugo L. Black:

Well, I am not talking —

J. Lee Rankin:

— against the —

Hugo L. Black:

— about the — after it was entered (Inaudible) —

J. Lee Rankin:

Yes, but I am —

Hugo L. Black:

— prior to its (Inaudible).

J. Lee Rankin:

No — That’s right, Mr. Justice.

Felix Frankfurter:

Because of the — because of the — the policy of our nation against the whole world regarding three miles, is that right?

J. Lee Rankin:

That’s right.

We wouldn’t recognize —

Hugo L. Black:

How could our policy have governed Texas as a republic?

J. Lee Rankin:

Well, because our legal policy was one where — for instance, let’s take it something removed from —

Hugo L. Black:

But could it — could it have fixed — could our policy prevent Mexico from having whatever you pointed out in your argument?

J. Lee Rankin:

Well, it did.

We —

Hugo L. Black:

Well, if — if it has powers of preventing it from doing it, but as a question of law —

J. Lee Rankin:

Yes.

Hugo L. Black:

Do you mean that because of our policy, no nation in the world had a right to have more than three miles out of their boundary?

J. Lee Rankin:

Because the United States won’t recognize for any other nation —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
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Hugo L. Black:

I understand —

J. Lee Rankin:

— as a matter of law.

Hugo L. Black:

— United States won’t recognize but I am —

J. Lee Rankin:

Yes.

Hugo L. Black:

— talking about the Republic of Texas or the Republic of Mexico or some other country.

J. Lee Rankin:

It could have three — three leagues as a domestic matter in itself, but nothing that would be enforceable against the United States.

Felix Frankfurter:

Do you mean if United States wanted to and there (Inaudible) the war, if the Republic of Texas asserted that boundary, is that what you mean?

J. Lee Rankin:

Well, yes and also —

Felix Frankfurter:

Do you mean something more?

J. Lee Rankin:

I think that it would start a war in all the diplomatic exchanges we’ve had with many countries involved and many countries have abandoned the claim like the entrance of Russia and — and others that I have — Italy and others that I have cited and that are cited in our brief.

We didn’t go to war about them at the time because we didn’t have to.

Felix Frankfurter:

Well, is your answer to Justice Black’s question that considering your (Inaudible) of our national policy (Inaudible) this country, in the most solemn and unquestionable ways, had a policy vis-à-vis all other nations that it would not recognize boundaries beyond three miles seaward.

Are you — are you answering Justice Black’s question by saying therefore, the boundaries of any other nation (Inaudible) before the Court, couldn’t be — be more than three miles because this Government (Inaudible), is that your answer?

J. Lee Rankin:

That’s right.

So far as this country is concerned, the law would be — it — it did not have a boundary that was legal.

Hugo L. Black:

What — what would be — what would — what was the boundary?

What’s the boundary within the (Inaudible)?

J. Lee Rankin:

Three miles.

It’s a maritime —

Hugo L. Black:

That’s the law as we say it.

J. Lee Rankin:

That’s right.

That’s the position of this country in regard to the law and that is according to your decision.

(Inaudible)

J. Lee Rankin:

I don’t think in this — I don’t — don’t think in the light of this particular controversy or where it involved is the application of the law of the United States.

The Court could probably take what other countries did and say that would be the foreign policy of the United States instead of what was the foreign policy.

(Inaudible)

J. Lee Rankin:

That’s right.

The question is, what is the position of the United States because it is a matter of foreign policy.

It has to be determined by the political branch that has that responsibility.

Now, I —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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Felix Frankfurter:

If the question of foreign policy arises.

And in —

J. Lee Rankin:

Well —

Felix Frankfurter:

— if a question — if an issue of foreign policy arises, but then every assertion by Finland or Iceland as to what its boundaries are, that’s entirely (Inaudible) of determination by this country of (Inaudible).

J. Lee Rankin:

It doesn’t necessarily because sometimes, it doesn’t come up — up as a direct problem to our citizens.

Felix Frankfurter:

I know but —

J. Lee Rankin:

But quite often —

Felix Frankfurter:

— the fact says there must be a boundary nevertheless in the meantime, you can’t — there’s no boundary (Inaudible) comes out.

J. Lee Rankin:

Well, the law would be that you wouldn’t recognize as far as this Court was concerned because you would take what policies of the political branches are in regard to that matter.

And you would say regardless of what Finland or Norway or some other countries would claim as being 12 or 15 miles or something else, the foreign policy of United States is to recognize three miles and our citizens can go any place up to three miles.

And so when a case comes before us, that’s the law to it and that’s what you got.

Felix Frankfurter:

Does it follow — does it follow, based on your premise, that our foreign — the national policy was the three miles.

That this Government would tell its citizen, you go ahead and do what you seek outside of three miles although the foreign nations (Inaudible).

Does it follow?

I don’t think it follows at all.

J. Lee Rankin:

Well, we’ve done —

Felix Frankfurter:

There are lot of generalized claims made by this Government regarding foreign relations after which it (Inaudible) not direct on.

J. Lee Rankin:

Well, that might be but in this case, we have cases that we’ve cited to the Court in which we have told the citizens to go right ahead and three miles is the limit.

Felix Frankfurter:

Because they are ready to take the consequences of our position even throughout the places or diplomatic negotiations ultimately through war.

J. Lee Rankin:

That’s right.

And if we are willing to take that stronger position, this Court has said, “We won’t try to remake the foreign policy of the United States.

We will follow that policy because we have neither the knowledge, familiarity with all the problems that we — that are to be dealt with.

And so that part of the fact, whatever is said (Inaudible), we take and put right down, that’s what we deal with as the fact in regard to that principle of law.

Felix Frankfurter:

But — but, Mr. Solicitor, legal transactions might take place within the territories of this Government wasn’t recognized in its relation with other countries.

Now, the legal transaction may nevertheless be validated or recognized by this Court if it doesn’t affect anything with the United States.

So you can’t say either is or isn’t the territory or boundary so far as this country is concerned, a boundary with a relationship country, not a boundary (Inaudible).

J. Lee Rankin:

Well, the difficulty with that kind of an approach to the problem is that this Court would in fact be the same that at the time that the State entered the Union, the foreign policy of the United States will differ than that — that was asserted by the President of the United States and the Secretary of the States for 150 years.

They have said that that is the foreign policy.

And —

Hugo L. Black:

Three miles and three leagues.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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J. Lee Rankin:

Yes.

Hugo L. Black:

I thought you wouldn’t stand on what we say in California (Inaudible).

J. Lee Rankin:

I say that you didn’t examine whether there had been a departure as to the Gulf in —

Hugo L. Black:

I am — I am —

J. Lee Rankin:

— in that case.

Hugo L. Black:

— rather interested in the argument so far that everything has been said relates to, I presume, what was (Inaudible) judicial knowledge.

J. Lee Rankin:

Yes.

Hugo L. Black:

The Government takes the position that it’s entitled to the judgment, but the other side takes (Inaudible).

I assume that if the other is right and you are wrong about the interpretation of law as it — as it existed at the time, that it’s exceedingly important, at least on one decision of that case as to whether the Government has any proof or would have any proof that before Texas became a State, it did not assert and claim as its boundary the three leagues into the Gulf, is there any dispute of that?

J. Lee Rankin:

There is no dispute that from 1836 on, Texas did assert by the statute and claimed the three leagues boundary in the Gulf.

Hugo L. Black:

By the time it became a State.

J. Lee Rankin:

That’s right.

The United States submits that.

Hugo L. Black:

And that did it present that boundary to the Congress as its boundaries at the time it became a State?

J. Lee Rankin:

There is some question about that.

Hugo L. Black:

There is a question.

J. Lee Rankin:

It’s clear that they did not present at all when the annexations and joint resolution was passed.

It was not discussed.

It was never urged by any communications.

No — neither side have been able to produce this (Inaudible) that anybody ever urged these maritime boundaries as being of any importance for consideration.

Hugo L. Black:

What — what was urged within the quarter?

Did the — was the Report made the Congress of what the boundaries of Texas were claimed to be?

J. Lee Rankin:

The — the Report — this is — this is claimed by Senator Wallace that he read during the consideration or the recognition that the Congress passed the resolution recommended by the President (Inaudible).

It is claimed by — that Senator Wallace did read the statutes to the Congress at that time.

United States says that has no effect whatsoever.

That when you recognize a foreign country which can only be done by the President anyway, that you don’t pass upon the question of whether its territory, as it claimed, is valid or has any meaning whatsoever.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Well, there’s no question of what the boundary claims of Texas in — to various — various extent were known to the Congress at the time it was annexed or be admitted into the Union.

And the Congress would have nothing to do with being bound by those boundaries.

Hugo L. Black:

What did —

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 2) in United States v. Louisiana
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J. Lee Rankin:

It said so.

Hugo L. Black:

— what did the statute say (Inaudible)?

J. Lee Rankin:

Yes, I do.

You’ll turn to 208 —

Hugo L. Black:

Of your brief?

J. Lee Rankin:

— of the Government’s brief.

At the bottom of the page, “The joint resolution for the annexation of Texas provided,” bottom of that page 208, “resolve that Congress does consent that the property properly included within and rightfully belonging to the Republic of Texas may be erected into a new state and we call the State of Texas.

And be it further resolved that the foregoing consent of Congress has given upon the following conditions and with the following guarantees to wit, first, that State to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other governments.”

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

It was reduced, and the mimeograph sheet, I have had distributed to the Court, shows the extent of the great reductions as compared with the claims of Texas and what they had in their statute.

In addition to that, as set forth in this brief, some 30 pages of the debates by the Congress when this joint resolution was passed in which they raised the question about all of the extravagant claims to boundary and territory that Texas was making and that the United States must not be bound by anything like that.

I want to clear, nothing was said about this maritime boundary by anybody one way or the other as, just as many things.

Potter Stewart:

Mr. Solicitor General, I didn’t mean to interrupt you.

But I — is it also in this statute (Inaudible) found the language about the unappropriated — unappropriated —

J. Lee Rankin:

Yes.

Right.

Potter Stewart:

— in the same statute?

J. Lee Rankin:

Yes.

Potter Stewart:

And I think there is a claim made that that — perhaps not intentionally at the time but by its terms, by what it means could have — could have (Inaudible) the discussion here.

J. Lee Rankin:

Now, if you —

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Yes, and further, that we were given the absolute right, this Government was, to adjust all questions of boundary, maritime or any other.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

In 19 — in 1858 —

Hugo L. Black:

Oh, but as to the maritime —

J. Lee Rankin:

— we said in so many words clearly to Britain in regard of the Guadalupe Hidalgo Treaty that we asserted no — nothing in — beyond the three-mile in the Gulf.

That was the position we took.

We had a right under this very resolution to take it.

They bound themselves in advance to let us take it, and that was what the Congress’ conception was at the time.

And if you’ll read these debates, you’ll see that the Congress was very thorough, and I’ll tell you why.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 13, 1959 (Part 2) in United States v. Louisiana
Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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Audio Transcription for Oral Argument – October 15, 1959 in United States v. Louisiana

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J. Lee Rankin:

Now, if you’ll look at the map, they were claiming part of Wyoming clear up near the North Platte River.

They were claiming a large chunk of Colorado.

They were claiming part of Oklahoma.

They were claiming the whole eastern half or more of New Mexico.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

No, this — in this —

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

[Laughs]

In this statute, Mr. Justice, they were claiming all of these by the statute.

Now, they didn’t — didn’t have any possession.

Occupancy and they — the Congress discussed this.

They have said Texas can’t give title to property that it doesn’t own.

There are rules about those things under international law.

They can’t just go out and reach out and name a lot of boundary lines and say that belongs to us.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Well, the Comanches owned part of it.

And they — they described the fact, the Comanches are pretty good fighters.

And we’d have to take it away from if we would support any such claims.

And then Spain, they — they even said during the debates that there was never a Texan in the State of New Mexico except to the prisoners.

That’s what they said.

And that — that was when they went over to Santa Fe and they were taking —

(Inaudible)

J. Lee Rankin:

Well, I am just saying that’s what the congressman said in presenting this thing.

And there’s no question but the whole part of Texas — of New Mexico was under the control with the problems, and Santa Fe was — was occupied as the capital of New Mexico and perfectly loyal to the State — to the country of Mexico.

And they just felt, Look at us, come in here, and try to claim — take this statute of Texas and assert against Mexico, which is a much smaller power than we were at then.

We weren’t — we hadn’t reached the size we are now, of course, that we are still very much more powerful and for us, the State of Mexico, we are going to try to substantiate and urge even though there is no occupancy, no right of possession, nothing under international law that would give Texas those claims.

Mexico, “Because we have the power in the Treaty of Guadalupe Hidalgo, when we settle with you this controversy between this, we’re going to take the (Inaudible) and impose upon you to give us that regardless of international law.”

Now, that’s what the — the problem that they had up.

Felix Frankfurter:

Mr. Solicitor, at the time of the convention (Inaudible)

J. Lee Rankin:

Well, that’s — we set that out in our briefs.

Audio Transcription for Oral Argument – October 12, 1959 (Part 2) in United States v. Louisiana
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Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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J. Lee Rankin:

I can’t answer that just yes or no.

They still have the statute in effect in 1836.

But then we made a — a boundary agreement with them and they agreed to abide by our treaty with Spain and with Mexico.

And in that, they didn’t say a thing about any treaty —

Felix Frankfurter:

No, but this is — there’s any (Inaudible)

J. Lee Rankin:

Well —

Felix Frankfurter:

That was the — they claim that they (Inaudible).

J. Lee Rankin:

— we agree to a boundary that was — didn’t have it and they agreed to it.

Now, maybe, they —

Felix Frankfurter:

The — the convention adopted but they (Inaudible) then the boundaries between the Texas and —

J. Lee Rankin:

Oh, yes, but they said —

Felix Frankfurter:

(Inaudible).

Now my question was, was this (Inaudible) one of the arguments?

J. Lee Rankin:

Well, it was not included and that means it’s not in controversy because —

Felix Frankfurter:

Then what is in controversy?

J. Lee Rankin:

Can I —

Felix Frankfurter:

Then what is explicitly in controversy, what — this could be in controversy?

J. Lee Rankin:

I think so.

In this way, the boundary — they agreed in the —

Hugo L. Black:

We’ll recess now.