United States v. Louisiana – Oral Argument – October 14, 1959 (Part 2)

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 1) 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 15, 1959 in United States v. Louisiana

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John H. Price, Jr.:

Mr. Justice Black, may it please the Court.

Mr. Patterson said on behalf of the State of Mississippi prior to the lunch hour.

Now there the claim between the United States and the State of Mississippi does not evolve from shoreline but from the islands.

The Government contends and concedes to the State of Mississippi that the State of Mississippi line under the — boundary line under the Submerged Lands Act, extends three miles seaward from the seaward side of the islands on the perimeter of our shoreline.

If the Court can see here, we have a chain of islands meeting from the east to west here.

We have Petit Bois, Horn, Ship, and Cat Islands.

Ship Island is more than three leagues from the coastline.

It measured approximately about three and one half leagues from the seaward side of Ship Island to our — to our shoreline, I should have said.

These other islands are closer.

Petit Bois Island, near the closest point, is about six geographical or nautical miles from the shoreline and Ship Island is the farthest island away.

So the only controversy between the State of Mississippi and a Federal Government here is the difference between a — a measure from three miles south of and seaward — from the seaward side of this chain of islands here which they regard as our coastline under the Submerged Lands Act and upon which we claim to be three leagues from this, the seaward side of these islands into the Gulf, not to exceed however, six leagues from shore.

And the reason for the exception of course is, since Ship Island is more than three leagues from our shoreline, we cannot claim under our boundary description, under our Enabling Act and Act of Admission that we go a full league, full three leagues from the seaward side of this island.

We are bound by our boundary of description.

We recognize that fact.

Therefore, at every other point almost on our coastline here, we can go out full six leagues from shore, but at this one point here, we cannot go quite so far.

We can only go — our maximum distance is six leagues from shore.

Now, the basis of our description and our boundary is on our Enabling Act in eight — May 18 — March 1817, and it read thusly, “The inhabitants of the western part of the Mississippi territory be and they hereby are authorized to form for themselves a constitution and state government.”

And Section 2 picks up, “And be it further enacted that the said State shall consist of all the territory included within the following boundaries.”

You see the word, “boundaries” used there.

Mr. Justice Harlan has pointed out on several occasions during the course of the arguments here, what is the boundary.

If the Court please, that is Mississippi’s boundary here, which should be described hereafter in our Enabling Act.

They so specified as boundary here, to wit, without reading at all for the sake of brevity, I’ll go around the circumference here.

Beginning up to the southern boundary line of the State of Tennessee which strikes the Mississippi River, it comes around to the Tennessee River and thence up to Tennessee River to the mouth of Bear Creek.

It gets down the line down do what was then, the northwest corner of Washington County, Alabama.

I believe that boundary has — that county has been changed somewhat, but then it was the northwest corner of Washington County, Alabama.

It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore, to the most eastern junction of Pearl River with Lake Borgne.

Now, those were as important —

Potter Stewart:

Did it just say — did it just say westwardly, or did it say westwardly along the Gulf?

John H. Price, Jr.:

That — that’s westward, it always says, Your Honor — along the Gulf — and by the way, I’ll —

Charles E. Whittaker:

(Inaudible)

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

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John H. Price, Jr.:

It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne.

Now, that language is important there because when it gets to the Gulf of Mexico and runs thence westwardly, it doesn’t go thence westwardly to the most and east — most eastern junction of Pearl River with Lake Borgne and then come back.

And as an afterthought, say including all islands within six leagues of the shore.

To me the effect would have been the same.

But I emphasize that effect because the boundary description comes across to that point of the Gulf of Mexico.

And then it runs westwardly and embraces all this area here, all the way over to the — align directly to the most eastern junction of Pearl River with Lake Borgne here.

It sweeps the whole thing across one arm.

It sweeps the whole area after the six-league limit here in the Gulf of Mexico.

Charles E. Whittaker:

(Inaudible)

John H. Price, Jr.:

Yes, sir.

Charles E. Whittaker:

Where is the mark of south (Inaudible)

John H. Price, Jr.:

Yes.

Charles E. Whittaker:

(Inaudible)

John H. Price, Jr.:

Yes, Your Honor.

This point right here, and a continuation of this line drawn from the southern from the northwest corner of Washington County, Alabama, down to the Gulf of Mexico, that line projected out here, six leagues into the Gulf is our southeastern boundary line —

Charles E. Whittaker:

Right.

John H. Price, Jr.:

— under our description.

Did that answer your question?

Charles E. Whittaker:

No — no.

Not just so (Inaudible)

John H. Price, Jr.:

It is known as Mississippi’s island, Your Honor.

And getting back to your question a moment ago, if I may answer it this way, as you quoted the paragraph from Mr. Patterson a while ago, as to how we claimed this inland water between the mainland and the islands out there.

First of all, we claim it by our boundary description.

We had a water boundary in the Gulf of Mexico according to our Enabling Act which was adopted by our Act of Admission.

We contend that.

Furthermore, as the Government concedes in his brief on page 254 of its original main brief, in eluding factor that cross statement about Louisiana, in the first full paragraph there, as in the case of Louisiana, we need not consider whether the language including the islands et cetera, would of itself, include the water area intervening between the islands and the mainland though we believe that it would not, because it happened with all the water, so situated in the — in Mississippi is in Mississippi Sound, which this Court has described as inland water and cites Louisiana versus Mississippi.

The bed of these inland waters passed to the State on its entry into the Union, under Pollard’s Lessee versus Hagan in 3 How. 212, decided in 1845.

So also we agree that Mississippi has a marginal belt extending three miles seaward from the islands marking the outer limit of the inland waters of Mississippi Sound, under the ordinary application for three-mile rule.

And then it sets up in the — in the next sentence here, the only issue between Mississippi and the Government is, as I’ve mentioned a while ago in beginning.

Furthermore of course, under the definition in — of the coastline in the Submerged Lands Act, which is clear to define there, specified of course we do claim that area also under — under their Submerged Lands Act.

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

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John H. Price, Jr.:

That’s the only way the Government concedes it to us, by virtue of being inland waters.

That we claim it by our boundary description and also this Court’s holding in — in Pollard versus Hagan, in 1845.

Now going from here, did I answer your question, Your Honor?

Hugo L. Black:

I understand that the Mississippi (Inaudible)

John H. Price, Jr.:

Yes, sir, that’s correct.

But not to — not to exceed three leagues from the seaward side of the island, Your Honor.

Hugo L. Black:

Well, are you (Inaudible)

John H. Price, Jr.:

That’s because the seaward side of — of Ship Island here is moving three leagues from shore.

We can’t claim quite so much at that point do you we think.

We are bound by our boundary description of six leagues from shore.

Therefore, we cannot go —

Hugo L. Black:

You say that as you put shore.

John H. Price, Jr.:

Shore, it’s right on the Gulf of Mexico — right up here on the — right up here Gulfport and Biloxi along that shore, it wraps to move some since the State came into the Union, but that is our — the mainland of the State of Mississippi right there.

That’s here — that’s our shoreline, as we see it.

Now furthermore, in pursuance to the Enabling Act as had just given, under your court or given by the Federal Government where our boundaries were set in Enabling Act.

It says you go out and you form your constitution and I will let you into the Union.

So we did so.

When I — 1817 —

William J. Brennan, Jr.:

Now Mr. — Mr. —

John H. Price, Jr.:

Right, sir.

William J. Brennan, Jr.:

May — may I just clear up one thing that puzzles me?

John H. Price, Jr.:

Yes, sir.

William J. Brennan, Jr.:

United States concedes that this water between those — outermost islands in the shore.

Mississippi is a part of the inland waters of —

John H. Price, Jr.:

That’s correct, Your Honor.

William J. Brennan, Jr.:

You however claim that you get it not by reason of that or in addition to getting it that way.

You get it because it’s within your boundaries.

John H. Price, Jr.:

Yes, sir.

That is correct.

William J. Brennan, Jr.:

So we come back to the question of whether or not, the boundary is at the outermost island.

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

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John H. Price, Jr.:

Yes, sir, that’s correct.

I will come to that — I’ll — I’d recognize that to be important to the Court and I will come to that and — and stress that in — in a moment or two.

In our Constitution of 1817 pursuant to our Enabling Act, we started — we represented the people inhabiting the western part of the Mississippi territory, contained within the following limits.

There again, we set our boundaries limits are.

And we describe our boundary the same as they were described in our Enabling Act, and I just conclude by saying and thence westwardly including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne.

Now, the next Act with regard to our coming into the Union was our Act of Admission.

And perhaps I should read it to the Court to show how we do refer back to our Enabling Act, “Whereas in pursuance to an act of Congress passed on the 1st day of March, 1817, entitled an act to enable the people of the western part of the Mississippi territory to form a constitution and state government and for the admission of each State — of such State into the Union on equal footing with the original States.”

Incidentally here, Your Honor, I know of no place in the Constitution that equal footing appears, except in these acts of admission that the Court inquired about this morning.

The people of said territory, did on the 15th day of August in the present year by a convention called for that purpose, formed for our — themselves a constitution and state government, which constitution and state government so formed as Republican.

And in conformity to the principles of articles of compact between the original States and the people of the States and States in the north — the territory northwest of the River Ohio etcetera.

So that — it refers back to our Enabling Act.

So we come to the point that the Government’s — the argument there that, at the time, means this boundary relinquish theory, when you came in, you could not claim more than three miles.

Does the Government say by that theory that when they set out boundaries themselves by the Enabling Act and says you may form your constitution, if you do so on Republican way and in effect, cite these boundaries, we’ll let you in?

Did the Federal Government reneged on its agreement prior the time we came into the Union?

If you follow these rules, we’ll let you in according to this boundaries authority.

Therefore, we contend the Submerged Lands Act means when it says, as it existed at the time it came under the Union or prior to.

If you read it into Section 4 of the Submerged Lands Act, that necessarily, this Act of Admission is not a one second proposition.

If there’s a continuing act from the Enabling Act to the Constitution of the State and then on to the Act of Admission, that is bound to follow by any reason of interpretation, we contend.

A federal rule by Mississippi Constitution of 1832 and 1869, our boundaries were not changed.

In 1890, we started off by saying the limits and boundaries of the State of Mississippi are as follows, and described them — substantially a lot there described in the Enabling Act with different language in some particulars.

But then we come down thence on a direct line from this — what was formerly Washington County, Alabama.

Thence on a direct line to a point, 10 miles east of the Pascagoula River on the Gulf of Mexico and then the same language out that thence westwardly including all islands within six leagues of the shore.

Now this, as Mr. Patterson said this morning, this six —

Hugo L. Black:

To — to a — to a certain point, where is that certain point on the map?

John H. Price, Jr.:

The point — Your Honor, that point there —

Hugo L. Black:

Yes to —

John H. Price, Jr.:

— that says, thence to — down to —

Hugo L. Black:

10 miles most eastern junction of Pearl River with Lake Borgne.

John H. Price, Jr.:

That’s over here, Your Honor.

Hugo L. Black:

That right there?

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

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John H. Price, Jr.:

It comes — it comes to crossover to that point here.

It’s a line out from that area into the Gulf of Mexico, we say is our southwestern boundary line.

Hugo L. Black:

It says to the most eastern junction of Pearl River with Lake Borgne, is it joined there in the Gulf?

John H. Price, Jr.:

It joins in the Gulf.

It joins (Inaudible) projected of a line out from the — the most eastern junction of Pearl River with Lake Borgne is our shore — where the line appears on the shore.

Our seaward bound —

Hugo L. Black:

Where is the — where is the — that junction on the shore?

John H. Price, Jr.:

Right here, Your Honor.

Right here down, our western boundary here.

Hugo L. Black:

That’s on the island.

John H. Price, Jr.:

Those 50 islands cited here that our shoreline comes out and projects out here, right here.

Hugo L. Black:

Now what is that point right there?

John H. Price, Jr.:

This point here is the most eastern junction of Pearl River with Lake Borgne when you come across from the southeastern boundary line and bring all the islands and area into the six-league boundary and you come over to this point here, include with the lines projected out here into the Gulf of Mexico, just six leagues from — from shore at that point.

Potter Stewart:

Where is — where is Pass Christian on that? It’s not in our part —

John H. Price, Jr.:

Is that — it’s not on the map (Inaudible) at this point here Your Honor (Inaudible) right here that’s —

Potter Stewart:

And where is the Biloxi?

John H. Price, Jr.:

Biloxi is —

Potter Stewart:

Over there, yes.

John H. Price, Jr.:

Biloxi’s right here.

Potter Stewart:

Yes, right.

John H. Price, Jr.:

Biloxi and (Inaudible) over here.

Potter Stewart:

Pass Christian is over by the (Inaudible) water.

John H. Price, Jr.:

It’s back over this direction here, Your Honor back towards the Louisiana land over here.

Charles E. Whittaker:

Mr. Price, do you understand with reference to Section 2, you within this (Inaudible) waters to uphold stroke of the breadth of the — your southern ground boundaries?

John H. Price, Jr.:

They do not, Your Honor.

They only concede after the seaward side of these islands here, a line drawn from island to island seaward side to seaward side of the islands, along the seaward side to the islands.

Charles E. Whittaker:

But does that cover the whole distance both in east and west of your State?

John H. Price, Jr.:

The island do not — do not quite, Your Honor.

Charles E. Whittaker:

Is that a concession?

John H. Price, Jr.:

I beg your pardon?

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

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Charles E. Whittaker:

Is the Government’s concession?

John H. Price, Jr.:

That is the Government’s concession.

And our boundary (Inaudible) comes across, and under on Louisiana versus Mississippi, it was projected that only the State of Mississippi is somewhat like this.

And it withdrew with — the lines would follow as they can all the way across our southern boundary line as I understand their concession.

If the Court please, hurrying along here, we claim the southern portion of Mississippi this part here, (Inaudible) on 1812 under the Louisiana Purchase.

That was held by this Court in Foster versus Neilson.

We occupied it, a person does not ought to occupy by Proclamation 1810.

And in Foster versus Neilson, this Court held that by virtue of the fact that Legislative Branch had acted in asserting a claim to by adding to the Mississippi territory in 1812 and other actions that it was taken by us and giver out — granted to us by the Louisiana Purchase.

Now, the most important part I’d like to get to you now, as before my time runs out is the fact that the reasonable basis for our conclusion here that our line doesn’t go just to the islands out there, although it includes the islands, it goes through the area of six leagues (Inaudible), six leagues from shore.

And historically speaking when Fort Massachusetts were built on Ship Island here, in about 1859, Congress appropriated money for it and built by 1860 or 1861.

And the fort then, as history shows, is well upon the mainland and Ship Island.

At the present time, if you go Ship Island, you see that the — in the north side of Ship Island under the land we’d cite, the island now, the fort now sits considerable distance out into the water on one side, because the island has washed away to that extent.

Also Ship Island near and not entirely after it’s drawn on this map, because now, that this map would go — in 1947, a hurricane in 1947 cut a channel and cut Ship Island in two.

The U.S. told from geodetic survey charged that you have in the back of our brief, do show that severance in our island and so that there was a complete separation of the island here.

Can I ask you a question, now? Are those islands inhabited?

John H. Price, Jr.:

If your Honor please, the American legion if Biloxi-owned Ship Island now.

And they have this port of course, which they have somebody I’ve taken care of ensure impasses by through.

It’s also a concession stand out there, the beach which is frequently used on the seaward side of the island here.

Now, there’ve been some talk about, I think it belongs to the other island, they’re not very well developed as yet.

But people did go out there, they’re not even going to live out there, except that they have a lighthouse in Ship Island, of one man that I know of, who lives on Ship Island was all who takes care of the fort out there.

But there was an island here, in 1931 disappeared.

Just in the east — east side of Ship Island here, what is now shown here in Coast & Geodetic Survey chart in our brief, there’s a (Inaudible) right in this point here.

That island was built up.

It had been developed and there was a night club out there and it was quite a tourist attraction for — for a great many years.

In 1930 and 1931, the island finally disappeared and that allows under about three and half feet of water.

The only evidence remaining of the past existence of the island here’s that there’s now a — an artesian well pipe that’s (Inaudible) water into the Gulf of Mexico.

Also, as Mr. Sachse mentioned yesterday, Timbalier Island off — off the coast of Louisiana has moved some nine miles in the last number of years.

Therefore, we contend that the very nature of the islands here, that islands move and ship from place to place.

Therefore, definitely positive that if we contend, that there might be an island here, next week or next year off and seaward of these islands here.

And it must’ve been known when the boundary was — was described in the early days.

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

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John H. Price, Jr.:

When La Salle came over and claimed Louisiana for the — province of Louisiana for France, he claimed all the — the seas and the bays and (Inaudible) and whatnot and the ports south of the — of the River Mississippi.

He must have sailed in this area around here and determined the nature of these islands here.

And by the same token in 1699, when Iberville came over and settled here at Biloxi in 1699, he also ought to find (Inaudible) on Dolphin Island, which is over in — another sand island over here in off the coast of Alabama.

He stayed there for 23 years before moving on to the — what is now about the area of New Orleans, City of New Orleans.

Therefore, he must have known precisely of where these islands — what can — what type of islands they were.

Furthermore, when King George issued his Proclamation of 1763 on which we tie our six leagues boundary to.

When he got this land in obsession, he divided into the provinces of East and West Florida.

This part of Mississippi here below the 31st parallel, is a part of what was West Florida.

He described West Florida in his proclamation as south of Mississippi territory, which was in 31st parallel, east of Mississippi River and west of the Perdido.

Therefore, this area, all in here, was in that — that area and he established this line that six leagues from shore.

He must have known himself what the nature of the islands were.

I can find no way at all to tell now where precisely the islands were in those days, back in the old days of King George and so forth.

There’s no way out to tell where they are.

And we must, I think, concede that island shift and move and certainly if a week or a year after King George occupied the area and divided this — this two provinces of East and West Florida here, he must have — he must have realized that if an island appeared further out in this — if this was a chain existing then, that surely he would have reached out beyond that and got in the island beyond there.

And by the same token, I believe, as what the United States in the Enabling Act set the boundary of six leagues from shore.

If an island had appeared, most assured, they would have claimed that island out there as a part of the United States, because it would then be in — within the six leagues boundary line from the Gulf — from the shoreline.

This King George’s proclamation of 1763 came on down from that time after dividing the two provinces of East and West Florida.

West Florida then was seated all the way down the line just as West Florida.

The boundary line was established and through the whole chain of conveyance, we — it came down to us as West Florida under the Louisiana Purchase.

If the Court please, there’s one thing I’d like to close with is the Federal Government position in this case that national policy has already been started before the defendant States came into the Union.

And that limited the boundary three miles from coast and a state boundary on the Submerged Lands Act on this is limited by the national boundaries.

The question I have is this.

It seems that by language and by that attitude that the Federal Government says that the Government takes the position that by passing this Submerged Lands Act by Congress and by the President’s approval of that act by Congress, then that it would turn in chief, this was April’s fool joke played in May on the Gulf coast States.

You’ve got to give some meaning to the three-league provision in the Submerged Lands Act.

We don’t believe we can challenge the sincerity of a good faith of Congress and the President in putting that proviso in our Submerged Lands Act.

It means something, else why did they put it in there.

Let’s go to our rule of the statutory construction as outlined here in the joint brief of the States on page 37.

We cited this Court an ex parte Public National Bank of New York, it says, “No rule to statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect, shall, if possible, be accorded to every word.”

As already — breaking the abridgment to Section 2 was said that, “A statute off upon the whole to be construed.”

That if it cannot — if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.

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

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John H. Price, Jr.:

They read a meaningless thing into this thing of this — of the three-league boundary, three provisions set by the Submerged Lands Act.

It must be given some meaning by this Court.

And if we had no form about this, there’d be no foreign boundary every established by any act of Congress, only by prejudice.

And if it’s necessary to do so, I think this Court should hold that the Submerged Lands Act establishes national boundary.

That is not a part of this case however.

And I will quickly show that Mississippi does not claim any territorial sea or any territorial waters, we claim only submerged lands under the waters, out of the six-league boundary line.

Don’t you think you’re overstating the position of that when you say that the Government’s position was involved reading — making the Act meaningless?

Does the Government concede that if there was an act of Congress in letting a State to the three-league boundary, then notwithstanding general and national policy with respect to three miles, the State would get that Submerged Land Act rights out to the three-mile limit or three — three-league limit.

You can’t quite say that the Act becomes meaningless, it seems to me.

John H. Price, Jr.:

If Your Honor please, as matter of national policy talks about in foreign policy by the United States and his argument is, it distresses time and time and time again is, that our foreign policy was three miles, only three miles.

They were — the — the debates were voluminous and unending almost in Congress about this Act.

There were just countless, hundreds and thousands of figures in the reports about this thing at Committee hearings.

The Congress knew it would expose of what our national policy was.

The President, the Chief Executive Officer have known what the Secretary of State would do and certainly he can act only for the Executive.

They — if there was a national policy, they knew it absolutely.

And they said if — if it was at that time, the Act must mean that despite that fact and we say it was no national foreign policy of three miles absolutely, but if there was, they said that we’re going to ignore the foreign policy if we must.

We’re going to give the States out to — if they can prove their historic claim at the three leagues from — from coast, we’re going to give that much out there.

And our territory was that we’re going to reserve that to ourselves.

But insofar as the submerged lands and not the resources therein, we’re going to give that to the States.

Did that answer your question, Your Honor?

Well that turns on whether you read existing at the time I was meaning the moment — after the moment before.

John H. Price, Jr.:

Yes, Your Honor, as I mentioned a moment ago, I don’t see how in the world you can read it that way as saying the moment after we came in the Union.

Well all I’m suggesting is that your statement is a little overstating, it seems to me in fairness to the —

John H. Price, Jr.:

I don’t want to overstate (Inaudible) Your Honour.

Hugo L. Black:

Your time is up.

John H. Price, Jr.:

Thank you.

J. Lee Rankin:

Mr. Justice Black, may it please the Court.

I’d like to see if I can do a little with this boundary question of Mississippi and also treat with the problem of the Gulf and —

Hugo L. Black:

I wonder now it would be a good time to any case that’s probably good for these maps here, if some of them have been (Inaudible) to the argument.

Those would have should we need them.

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

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J. Lee Rankin:

They aren’t our maps but —

Hugo L. Black:

Well who (Inaudible)

J. Lee Rankin:

Sure I can.

Hugo L. Black:

— can you make that make it out.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

If we take this description of the boundary that appears on page 327 of the Government’s brief, boundary of Mississippi, it starts out with, “The State shall consist of all the territories included within the following boundaries.”

So as I read that, that would be all the various kinds of property to maritime or land or otherwise within this definition.

And if — if counsel (Inaudible) turned up to here and go on down and then as — as I read it, it comes to the Gulf of Mexico.

Potter Stewart:

You’re talking about the Enabling Act?

J. Lee Rankin:

Yes.

On page 327.

Potter Stewart:

Thank you.

J. Lee Rankin:

Then it says — thence west — westwardly and that would be in United States that would be right along here until it gets to the point that Mr. Justice Black called (Inaudible) over on this end.

Now, if you read it as Mississippi is suggesting that you go on down for six leagues because of the language including all islands within the six leagues of the shore, there’s no sense to the proposition of referring to the islands at all, because you’ve already — already got them there.

Here it says all territories.

Territory by definition, as all of the experts includes not only land, but everything else within the area described so far as boundaries of States are concerned.

If you run on down here for six leagues and then come over, you really got to go north a little bit to get back to where Mr. Justice Black referred to that (Inaudible) do that somehow, to get over here and he’s got the islands all within it, without ever referring to.

You don’t refer to any of that other States, you don’t refer to any of the rivers, inland waters and so forth, that are involved in the territory when you’re describing it that way.

So that the only way we think that you can read it, is that you go westwardly as it says along the Gulf.

And then to be sure you pick up the islands, you say including all islands within six leagues of the shore.

You’ll notice the word, “shore” is used in this particular Enabling Act and it’s again used in the Alabama Act instead of coast as was used in the Louisiana Act.

Now, we’ll get down to what shore and coast means.

In the case of Louisiana against Mississippi, this Court held that when Congress said in the Enabling Act for Louisiana that it was coast, but it meant shore.

And I’ll try to prove that to you on the map.

Here is what the Court referred to as St. Bernard Peninsula which we would call and which the Court did refer to as shore.

And we started to measure from that point in and instead of treating it as coast which was run out — I think it’s a brief by all parties here in the States, as was the United States that it run out the islands.

Hugo L. Black:

Where did the word — the word coast appear?

J. Lee Rankin:

It appeared in the Enabling Act of Louisiana.

Hugo L. Black:

Of Louisiana, not Mississippi?

J. Lee Rankin:

Yes.

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J. Lee Rankin:

Not Mississippi.

I was trying to make that —

Hugo L. Black:

Yes.

J. Lee Rankin:

— distinction between the two.

Enabling Act of — of Louisiana is on page 224.

Now, we think it would be very strange for the United States to admit these States and as one keep in mind, the order in which they were admitted, Louisiana first in 1812, and then Mississippi as I recall in 1817 and Alabama in 1819.

And each one closely together, but to admit Louisiana first and give it only three leagues and then give the other six leagues, if there was any such intention to do that kind of thing.

But if they — they did it with regard to the islands that there might be there, that’s a common thing for countries to do, because you wouldn’t want some other nation to come out and take an island that is right at the mouth of one of your chief water sources, navigational importance, navigational streams and be able to affect your commerce or be a threat to your commerce.

So we think that the only basis we agreed that the only place where that six leagues could have come from that we could find, was the Treaty in regard to Florida which is — which referred to the islands within six leagues.

Which is the State that — that description is it applicable to six leagues?

J. Lee Rankin:

The six leagues in both Mississippi and Alabama.

They both claim it.

Well, you’re saying six?

J. Lee Rankin:

And it’s described in —

Yes.

J. Lee Rankin:

— in both of the Enabling Act.

Now, in regard to the question of shore and coast, the shoreline would follow the various sinuosity every coast.

And there are thousands of them, maybe I think, we all agree on this Gulf coast along here and it would go on inside of bays and all the other points all along right there.

I am rather loosely pointing to it, but that’s the way the shoreline would go.

The coastline would follow along the islands that they recognize as having inland waters inside them and so we are in agreement, I think, that the islands, so far as the coasts is concerned, would be the point of measurement under the Act and we come down here and follow along wherever there was inland waters.

And then you measure it from there, instead of going back to those sinuosities.

Now, where the Gulf is, when they described and use Enabling Act that you come down to the Gulf, we think, it could be wrong that it means like you would say you’d get — come down to Pacific Ocean, it’s where the sea, the salt sea comes up in a medium-low water against the coast.

Charles E. Whittaker:

And that’s the (Inaudible).

J. Lee Rankin:

That’s right.

And that has to be what they’re talking about at the Gulf.

Now when they talk the mouth of the stream at the sea, we think that’s where that water from the stream comes against the sea and is the mouth of that stream as so recognized.

If anybody was going to say, “It should be three miles up from that point”, we think they’d say it.

Now, there is some claim that La Salle claimed all the area out to the 27th parallel here for Louisiana, when he came to that — that area and issued his proclamation.

He said however that he claimed all from the source of the — what is known as the Ohio river and all from the source of the culvert also known as the Mississippi River to the mouth and then he said to the 27th parallel.

And he then went back a ways up from the mouth of the river to the first point that he could find that he could plant his memorial and he put it there claiming it for France.

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

Now, we think that it’s just another evidence as we pointed out in a number of times of the fact that La Salle just made mistakes about longitude and latitude various times.

And that there was no purpose to claim an area way out like some 127 miles into the Gulf that he hadn’t explored and didn’t show any interest in from the rest of his action and proclamation.

Now, yesterday, I made the claim that in construing a grant of this kind that it should be strictly construed in favor of the United States and against the grantee.

And I cited the United States against the Union Pacific Railroad Company and I was asked by the Court if, “Do you ever do that about the States? Was that applied to the States?”

I found one case in regard to it and that’s 190 U.S., United States against Michigan.

This isn’t in our brief.

William O. Douglas:

United States versus Michigan?

J. Lee Rankin:

Yes.

190 U.S.

William O. Douglas:

190.

J. Lee Rankin:

190.

379.

Now, that applies it expressly to a State as a principle of law.

I do want to call attention to the fact that it’s — it speaks of it as public grants — grants for public purposes.

I don’t see any distinction.

I still seriously urge upon this Court —

Felix Frankfurter:

What is the controversy about it?

J. Lee Rankin:

It was a question of (Voice Overlap) —

Felix Frankfurter:

Did the government — what was giving permission then?

J. Lee Rankin:

It was certain.

There were certain grants and there was a question of whether they’ll continue to use them for the purposes that the Government had limited them to.

And the extent —

Felix Frankfurter:

But to the Railroad and whatnot.

J. Lee Rankin:

It’s that kind of a thing.

And I still contend that while this case might not — squarely, the Court did use it as a rule of law, it applied to States as well.

It definitely stated it that way.

And I contend on behalf of the Government that where you are considering properties of — of substantial rights as these are that there should be applied a rule of law that would, in carrying out the intend of Congress, if there’s any doubt, it should be applied to protect all the people of United States as against a limited number involved in the States.

Now, we have another case that is not in our brief that I’d like to call the Court’s attention to.

I referred to it the first day, but I didn’t give you the citation.

And that is the case of The Anna.

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Hugo L. Black:

D I —

J. Lee Rankin:

The — The Anna, A-N-N-A.

It’s a ship.

Hugo L. Black:

It’s called The Anna.

J. Lee Rankin:

Yes.

And it’s in Volume 5 of Robinsons Admiralty Reports at page 373.

Now, this is the case that I referred to and I think it’s a great weight here, because it involves this very area that was decided in 1805 by Sir William Scott, later known as Lord Stowell.

Hugo L. Black:

What year?

J. Lee Rankin:

1805.

And this was right around — this was before, you see, Louisiana or Mississippi or Alabama and of course, long time before Texas and Florida were admitted into the Union.

In the case, counsel referred to this statute of the United States.

And they say the three-league, the three-mile claim — a marine league is clearly made by the United States by the statute.

In fact they say the laws of the United States on this question are laid down with the exact precision and direct, “That their District Court should take cognizance of complaints by whomsoever instituted, in cases of captures made within the waters of the United States or within — within a marine league of the coast and shore thereof.”

Then this involved the privateer if you will recall and it was a question of whether he was with — it was within three miles of our shores right at the mouth of the Mississippi River at the time it was taken.

And if it was, then it would not — it would have to be released.

And Sir William Scott held that this was territory of the United States when it was taken within three miles that this ship was within the territory of the United States and therefore, under the law, it had to be released because it was a property that was under the control and direction — protection of the United States and its territory.

Then the King’s advocate says “This is a claim of territory, alleged in the most solemn form by the directions of the Ambassador of the United States.”

You see it’s the position that the Ambassador has presented to the Government and is being presented by the King’s advocate by that direction, the most solemn form, resident in this country.

And then the Court goes on to deciding the question.

When the ship was brought into this country, a claim was given of a great nature, alleging a violation of the territory of the United States of America.

This great leading fact — fact has very properly been made a matter of much discussion and charts have been made before the Court to show the place of capture, though with different representations from the adverse parties.

I apologize for my mistakes the times it got the essence in the old style and it’s a little difficult too.

The capture was made it seems, at the mouth of the river Mississippi.

And as it is contended in the claim within the boundaries of the United States, this is 1805, “We all know that the rule of law in this subject is “terrae dominium finitur, ubi finitur armorum vis” and since the introduction of firearms, that distance has usually been recognized to be about three miles from the shore.

But it so happens in this case, that a question arises as to what is to be deemed the shore.”

Now you’ll notice that he says, “We all know what the law is” that that distance that you can control by your arms which is recognize to be canon shot is the territory that the country has.

Felix Frankfurter:

Less than that — nobody thought it was less than that, that is just you cleared.

J. Lee Rankin:

I don’t recall of any the instance left.

Felix Frankfurter:

Was this — this could be a question of a price of a vessel of sea within the three-mile limit?

J. Lee Rankin:

Yes, Mr. Justice.

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J. Lee Rankin:

And that —

Felix Frankfurter:

Whether the claim of the — of the seizure — of the seizure.

J. Lee Rankin:

The seizure claimed that it was not within the three-mile limit.

Felix Frankfurter:

That is — as a geographically, it was beyond the three-mile, is that it?

J. Lee Rankin:

No, it was geographically found by the Court to have been seized within.

Felix Frankfurter:

Yes.

J. Lee Rankin:

But the — there was no contention that the law was different or that the United States territory didn’t extend for the three miles.

Felix Frankfurter:

No.

J. Lee Rankin:

The only issue was whether or not the actual seizure was within that territorial outside.

And that what I am trying to demonstrate is that back in 1805, the court of another country examined our position as to what our territory was and found it to be that because of the representations of the Government and from his own independent examination and concluded and applied it.

Felix Frankfurter:

I am suggesting that nobody thought that we had lesser right and — within the three-mile limit.

J. Lee Rankin:

Well — but the — the issue was if it was beyond the three-mile and that’s what they claimed, just one — a foot or so, they would have been outside.

That was what they were trying to decide.

William O. Douglas:

What did this case decide?

J. Lee Rankin:

It decided that they had to give it up, that it was found to be within the three miles and therefore taken within the territory of the United States which was found to be three miles outside or from the coast.

And therefore, it couldn’t properly be taken as privateer.

That was the holding.

And the Court didn’t find that they had three miles — the United States had three miles and one foot.

They found, as a matter of law —

Felix Frankfurter:

No.

But if — if it was within the three miles, then the seizure was —

J. Lee Rankin:

Invalid.

Felix Frankfurter:

— was invalid.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Lord Stowell wouldn’t recognize it and nobody else would.

J. Lee Rankin:

Yes.

But he also found — had to, because if there had been no — if our boundary or territory had been six miles or three leagues, he would have no problem whatsoever, because it was —

Felix Frankfurter:

It was English ship?

J. Lee Rankin:

No.

It was a ship that belonged to a New Orleans man.

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Felix Frankfurter:

And — and the Britisher seized it and the question, whether he could keep it.

J. Lee Rankin:

That’s right.

And that had a very bad —

Felix Frankfurter:

We don’t know what Lord Stowell would have said if it has been found outside of three miles.

He was rather — he was rather nationalistic in his interpretation as far as law, as we all know.

J. Lee Rankin:

Well, Mr. Justice, I think when you examine the case, you’ll find that the issue was whether it was out three miles and a half and so it —

Felix Frankfurter:

If they found it wasn’t so the legal question doesn’t arise.

J. Lee Rankin:

Well he wouldn’t have — he would have said that it’s — if he thought —

Felix Frankfurter:

What you’re saying is, he would have said, “I don’t care, whether three miles or five.”

J. Lee Rankin:

if — if the boundary was actually three leagues, he would have said, well what other.

It’s — the evidence are all clear.

There’s no issue here.

It was still within it.

But he had to find out whether it was really three miles within three miles or was out three and a half.

And that’s what the — the issue boil down to.

And I think the case is very important for its recognition of the claim of the United States, a claim made by our Government and determination by a foreign court right at the time that seems crucial on this matter in 1805.

With respect to the territorial (Inaudible).

J. Lee Rankin:

Yes.

It deals with — you see that the argument’s been made in this case.

Well, of course, three miles applies to other places.

The United States, the policy is so claiming that, but it doesn’t apply to it — to the Gulf.

That’s special.

And here’s the case, that isn’t our Government isn’t our courts or anything; it’s one of the great judges of Admiralty of Britain that examines the question and finds right at the time before any of these States that we have that policy that it controls, applies it to a New — New Orleans ship in actual life.

As a matter of construction, you may (Inaudible)

J. Lee Rankin:

No I didn’t.

I concede that.

Hugo L. Black:

Mr. Madison.

Gordon Madison:

Mr. Justice Black, may it please the Court.

Alabama has two pleadings you might say which have been filed in the Court, which do not pertain to the other States and before I go into the argument proper, I believe it’s well to call the Court’s attention to what those are.

William O. Douglas:

Is this your brief as to the (Inaudible)?

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Gordon Madison:

Yes sir.

We were in a measure, invited by the Court after Texas filed a pertinent proceeding of the brief here in which it asked the Court not to bother Texas in the Louisiana case if it decided it to come in and intervene.

Alabama didn’t have any oral aperture at that time and doesn’t have any now.

And if we had to wait until the United States sued us in order to determine what our rights were at that, I don’t know that we would have ever known, because there’s no assurance that we never had oil, although we do have a number of oil wells which have since been discovered in the Baldwin and Mobile County areas.

That took the form of intervention by the State of Alabama with the supporting brief.

After that, the United States amended by making all of the defendant States parties respondent.

To that, Alabama filed a short answer and the brevity of these things in the — the strength of Alabama’s claim rather than the lack of it.

It’s about two or three pages.

We made that a cross bill.

In my ordinary practice, if the United States had not been involved, I would most certainly have had a cross bill.

And it seemed to me that the Submerged Lands Act impliedly, if not expressly, authorized the State to file something to determine what they had.

But in any event, the Government concedes that Alabama can have just as much as anybody else under his answer without the cross bill, if it can prove it.

So rather inject that issue into this case for whether we can sue the United States or not, based on the Government’s concession to us on that point, we do not insist on the cross bill.

Next thing we filed was a brief for the State of Alabama in our position to the Government’s motion for judgment.

And I’d like to emphasize that that is what is pending here today.

We haven’t tried this case.

We haven’t introduced any evidence.

We haven’t done anything, except appear here in response to a motion which has been filed by the United States asking for a judgment.

Subsequent to that, there has been some changes in our administration, former Attorney General has become Governor.

And one of our former Assistant Attorney General has become Attorney General.

There are difference in the Governor’s legal advisers and the head of the Conservation Department and they wanted to be in some sort of way, so I figured out that I would make what I call a written memorial and I want to say that memorial can refer to a tombstone of a graveyard, and I’m not submitting in that sense that Alabama case is going to be bad, but it’s a written memorial of the oral argument of necessity.

Of — of course, the Court knows that I didn’t intend to read it.

Hugo L. Black:

The memorial, it has to do with (Inaudible).

Gordon Madison:

It does, yes sir.

And some of these foreign policy claims which I thought had been settled by the question from the Court to those preceding me, but I find it every time this distinguished gentleman gets up, it pops up again.

So, I — I don’t think I’ll even attempt to answer that except in this way.

I can see the gentleman and all the Senate and House now.

And by the way, at this point, I want to say that my two distinguished Senators were in full opposition of the Submerged Lands Act.

We’re fighting at every step.

If they had been for it, the record would have been full of Alabama’s claim just like you find for Texas and for Florida.

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

Now, they went out there as I believe and said we just gave right to Texas and Florida into this thing, and we’ll pass.

But we’ll get us up a formula or a criteria and I understand that they send it over to the Justice Department to get help on framing that language.

So that we will make it almost foolproof as far as Texas and Florida are concerned, we’re writing here prior to take care of Texas or it approved by Congress, subsequently approved by Congress to take care of Florida when it would have made it later as a rebel state and any generality, we let everybody else come in that can prove a boundary to take care of the (Inaudible).

But when they got that, they got it fast.

Well I submit that the Congress did not place, it did not place in Alabama’s hand or anybody else’s hand, a yardstick which struck the one foot the moment we call all to it to measure our rights.

And the one foot had got — it’s comparable to the three geographical marks.

As I understand the Government’s contention, that although we’ll give him a right to prove it, we can.

Now, I say it that although the Act may not be meaningless, Mr. Justice Harlan, in that sense, if his contention is correct that we cannot make proof even though we’ve got proof, we can make it because of some so-called three-mile rule, and then there are clear agreements.

The Congress has done a futile thing.

Now outside of that, he says you’re bound.

(Inaudible) Government’s reply brief when it took that position (Inaudible) Alabama against Texas.

Gordon Madison:

I am glad you brought that up, sir.

And if we — if we’re going to — if we’re going to talk about that a little bit, I believe you’ll find although he had his tongue in his cheek that the distinguished Solicitor General took the side that Congress can give one state more than it can give us.

Fair to the brief is devoted to it, so both of us better forget that.[Laughter]

Felix Frankfurter:

Do you think res judicata does not apply to Thompson’s brief?

Gordon Madison:

Well, I beg your pardon?

Felix Frankfurter:

Do you think res judicata does not apply to Thompson’s brief or argument.

Gordon Madison:

Well, you mean, Your Honor, it is a reply in kind?[Laughter]

Felix Frankfurter:

I mean Thompson take whatever position he sees desirable for the case in hand.

That’s what I mean.

Gordon Madison:

Now, I don’t believe this Court is going to hold that in the statement, but made by our Attorney General at that time, because their position changed depending on which side political offenses might be on.

Can trigger by Alabama’s boundaries or — or bind them, we couldn’t get in, in Court with that case.

And we used practically the same argument that Government is using now.

Now, if you all take the Government’s argument now as we get in Court that takes us out, at least that’s unfortunate.[Laughter]

As of this part of (Inaudible).

Gordon Madison:

Now, you — you’ll notice in this — and we’ll try to get down to them to my case now.

You’ll notice in its memorandum which are filed here, the memorial, I refer to various wards.

I don’t want to take that up except to say that the idea in referring to the Court’s expression in Johnson versus M’Intosh in 8 Wheat.

That’s a contest between the cabinets over a sale and matters respecting in the territory on the Northern coast of the Gulf of Mexico were fierce and bloody.

And then the war, it came with — with England and Spain and France, being fought them.

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Gordon Madison:

And after that, I think about 1780, Spain fought England and got West Florida back, all of Florida for that matter.

Then our historians said that Spain then control the whole Gulf coast.

And after that, we show the — the War of 1812.

We show the proclamation of President Madison who ordered General Raperson (ph) to take Mobile — gun boats were off Mobile Bay then.

The Spaniards were still in possession.

During that War of 1812, they’ve allowed the Florida forced to be used by the British, so Jackson when he finished it then, he went on down and stands (Inaudible) took that and he came on back and went to New Orleans and they fought the battle in New Orleans.

In the meantime, British made attacked on one of our ports out there, (Inaudible).

But even as late as 1815, when they were retreating from the (Inaudible) Mississippi, they attacked at the port again and captured it.

When I enumerate those statement, I am not having a low for it.

I enumerate them because it seems to me and on the unsettled condition at that period, during those periods, with no declared boundary from the national standpoint in the Gulf of Mexico that those different wars showed that each nation demanded for its own security, a greater wit than three miles.

Now, the next thing I’ll show is the dispute with Spain.

I realize this Court says he got — that he got West Florida, that portion which is pertinent to Alabama and Mississippi through the Louisiana Purchase, but it did so because that Congress had determined that and you’re bound by — looked like he’d be bound with some Congress done by the Submerged Lands Act too.

But anyhow, I don’t know whether if you have called upon to decide that straight question, you say is enough.

Again, Monroe and he went through a pass in 1804 and he — he directed the communication of (Inaudible) under the French Minister of Exterior Relations setting forth our claim on Louisiana Purchase and he replied in decided terms so our case is there.

The case of Foster versus Neilson, decided terms that with all the negotiations between France and Spain that no part of the Florida neither West or East, was conveyed or granted, or by the cession to France by Spain.

And that gave rise to dispute.

Now, we allowed the Spanish to stay in possession, it was regarded under the Louisiana fort.

And we actually didn’t get possession of that territory in the sense that we could have physical possession of it, until our set battle of New Orleans.

Now, I — I don’t have any law for this either, it was the kind of rule of commerce stamped in either way.

I don’t know hope too much within natural law.

What can you project into the area of that kind?

The foreign policy of three miles when it’s subject to dispute and which President Madison said when he sees it that he’s going to hold it subject to friendly or just settlement.

While in this to Great Britain, he wrote to why did you incorporate that territory when you said you’re going to hold it, subject to friendly settlement dispute.

And it was a pretty difficult question to answer.

In fact, I didn’t find the answer from United States Government to it.

Now, getting down — too much for those preliminary things, now getting down to Alabama’s description which I think is the crux of this case as far as we are concerned.

On page 3 — now this little yellow brief, is our description.

He said that the States here consist of all the territory included within the foreign boundaries and then gets down to the part that we run due south to the Gulf of Mexico, thence eastwardly, including all islands within six leagues of the shore to the Perdido River.

Now, this is the (Inaudible).

This is the Alabama-Mississippi line, over here.

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Gordon Madison:

And over here is this Florida-Alabama line and here is your Perdido River.

From this point on, the coast over here, running from (Inaudible) over here is the Perdido River, the coast and the shore are the same.

Over here, as Mr. Justice Stewart said, what place you get your feet wet is right up here.

Now, we say that’s the shore.

We have two lines drawn, I’ll explain to you where they go.

We got one that shows six leagues from shore running parallel and we got one that shows six leagues from coast running parallel.

Now, the British description when King of Britain devised it and described it the first time, he described an area, six leagues from coast and said it run from the River Apalachicola in Florida to Lake Pontchartrain in Louisiana, so we are a segment of that description.

And our — our State at this point when he asked about proof, if that thought of our chain of title, I don’t know whether we need to go back, and we don’t unless the Court takes care of it, if you do, I think I need to find out what they were talking about waters along that coast during 1763, as well as what might be there when we admitted to Union, because we are a segment of that description.

Now, the distance from the shore, the Petit Bois Islands and the district from the shore, the Dolphin Island which is referred the distance that you can get from shore to an island is less than three leagues.

It’s 2.86 in one case and 2.87 in the other.

You will notice that all of these phase that we’ve had here, as I understand the rule, are less than six miles and that rule is, you measure from headland to headland, so we come around here for our shoreline, come on down and in Gulf coast here with shoreline and gone over to the mouth of the Perdido River.

Now, for our —

Potter Stewart:

That’s one of your claims (Inaudible).

Gordon Madison:

(Inaudible) what I gather that the —

Potter Stewart:

That’s Mobile Bay, isn’t it, that — that big body of water —

Gordon Madison:

That’s right.

Potter Stewart:

— about in the center of the —

Gordon Madison:

Now we will run way up in Mobile Bay into our shoreline, because of the rule, none of our bays are — are six — six miles, over six miles —

Potter Stewart:

So you draw it from headland to headland, don’t you?

Gordon Madison:

Right.

Potter Stewart:

How — how wide is the — is the whole water, Gulf water of Alabama there.

It’s tantamount too much, doesn’t it, in mileage compared to the other Gulf states.

Gordon Madison:

Well, We hadn’t — but — but I don’t believe I think what did you — approximately 80 miles, but it doesn’t come here.

Potter Stewart:

A big part, which is Mobile Bay?

Gordon Madison:

That’s correct.

Now, here’s what I’d take the Government has conceded.

Now, I think they had conceded.

I don’t think they were doing Alabama a favor when they conceded.

I think it was because this Court has decided beyond any question that Mississippi found with inland water and everything under it, pass to the — in the Mississippi case which was considered.

We’re talking about the same Mississippi south, passed in Mississippi on this description, and therefore, it was inland water.

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

And I think what he means to concede is that we’re come here to the coast — I think this is the coast line he talked about.

We’re on — right on here — right on this Dolphin Island here, come on out here around these islands.

This is a pelican and these are not little pelicans in here, they are the West sand, and (Inaudible) are going back and going around.

I think that’s what he concedes.

Anything inshore of that, he concedes the wrong.

Charles E. Whittaker:

Do you understand (Inaudible)?

Gordon Madison:

Yes, sir.

Not only that.

I think he concedes that we asked you three geographical miles out from that line and he concedes to be the coastline.

Now, he can’t get a coastline back at the Mobile Bay.

He can get one off inshore of Gulf and islands throughout taking the — the smallest coastline that you can get.

In other words, I’m giving advantage to the Government.

I am not taking a line where I get somewhere.

I am just going here until you get water on the other side of these islands.

Now, let’s get to our description.

He says it wouldn’t been in a use of views, including all islands within six leagues of the shore.

Well, maybe not.

I’d say that too.

But the point he overlooks is by using that this Court has got to give some meaning to it.

If without using, we have got all the islands, then by using it what does it mean?

If all of the islands, and this is a further point away from shore, can be embraced within three leagues, then what does the extra three leagues mean when they say “In allowance within six leagues of the shore.”

What Court will do with more than three leagues?

Potter Stewart:

I could’ve been wrong of disappearing islands.

It is going to show up —

Gordon Madison:

Well, I’ve got where would this be and they’re right here.

And I’ve looked for hard places, shallow places under the water and I can’t find it anymore.

Now, I don’t have the Enabling Act in a material point set out, but there’s another provision in it that I think is material.

By running that line due south here, it — it imprinted on three Counties of Mississippi, Jackson, Greene and Wayne.

And they provided that if it did that, surveyor should finally did — did encroach on Mississippi, then they say the line is to run in a direct line, that was one south, from a northwest corner of Washington County to a point, to a point where?

To a point on the Gulf of Mexico, 10 miles east to the mouth of the river Pascagoula.

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

Well, on full Mississippi Sound, as I pointed out, would call Mississippi Sound, which this Court said the first map they had was in 1866.

It was known as Pascagoula Bay.

It has never been known to the Gulf of Mexico.

So, when you go to a point on the Gulf of Mexico, I say that means you go beyond the Gulf shore where the Government said, we stop.

On the Gulf shore, it doesn’t mean on the Gulf of Mexico to me.

Well, you ask the question where is that point there.

Where is that point that move the line?

Where is that point on the Gulf of Mexico?

I’d say you find it by going six leagues there, to me.

And when you do, you got a lot of boundary beyond your farthest island.

And I have one other point to make.

In this Mississippi versus Louisiana case, 201 U.S., there are a lot of maps filed in that case.

They were not disputing over the eastern boundary.

They’re disputing something about the — the right to oyster bed move on a western part.

But the lawyer to that day without any oral to becloud that thing, and anything like that, they sat down to consider where Mississippi started westwardly, the point.

And we start eastwardly from the same point.

Now, Louisiana said and later drew a map showing it, compiled from the maps which it introduced in this Court in that case, that Mississippi started westwardly from a point which is 18 miles south of these coastlines.

Well now, know you can’t see this but I’m going to leave it down.

That line was put on there and if it can enter by any instruction by the nation’s theory that were drawn on that by the culmination of the map 189 1991 preferred by the U.S. Coast and Geodetic Survey, the boundary line between Louisiana and Mississippi and duplication of Exhibit E in the case between Louisiana and Mississippi and known as the Number 11 original October term 1905.

And they showed that line out there where we claim it to be.

There (Inaudible) you’re talking about, that Horn Island that you’ll run into when you leave these islands here.

Now, I say, you didn’t have an (Inaudible), you just — you’re talking about something there.

And the lawyers on that day and I only had good one, there’s where they drew that line, I — I can’t get that up to you now.

What — we — it’s being left with the march — marshall whether you can see it, if you want to see.

And this particular map here —

Hugo L. Black:

Who made the map Mr. Madison?

Gordon Madison:

This map?

Hugo L. Black:

The one here.

Gordon Madison:

It’s (Inaudible).

Hugo L. Black:

Was it made in 1905?

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

It’s made — it has made the — two excerpts from the minutes of the meeting of the Louisiana Boundary Commission held in New Orleans in March 26, 1901.

So, I — I imagine they prepared it.

Now, I have — this is — there are three or four extra copies of it.

I can send of here (Inaudible) for Mr. Justice to look at.

They will be left down to the marshall for anybody’s consideration.

Now, I brought along because the part Mr. Justice Whittaker was talking about the Mississippi Sound is in that Gulf of Mexico.

Well, I — that — I don’t like that.

I mean that hurts my argument.[Laughter]

I want that studies much broad, that that inland water has been so flat, and I have got map here to show this was called Pascagoula Bay in 1778, it was called Pascagoula Bay in 1823, and it was called Pascagoula Bay later.

And then this Court said the first map submitted to it, when Louisiana versus Mississippi was tried through which Mississippi Sound was called out in 1866.

Now, I submit — well I’d just say it’s simple.

The equities to this case called to give here by the same thing as they — I don’t see the reason for one State to have three marine leagues submerged lands and many others not to.

Sir?

Charles E. Whittaker:

(Inaudible)

Gordon Madison:

Well, I have found out, Your Honor, that (Inaudible) Supreme Court and we’ll get just exactly what you are saying.

There won’t be an appeal from anyway.

And I think I’ve given you a reasonable bases here from which to give Alabama and applies to Mississippi just well three marine leagues from coast.

Now, I want to say in conclusion that — and this has got nothing to do with it either.

Well, it — just don’t make Alabama the neglected child and the happy Gulf coast saddened.

Thank you.[Laughter]

J. Lee Rankin:

Mr. Justice Black and may it please the Court.

I’d just like to say one word about the argument of Alabama and that is —

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

No, about their — their case is what I mean.[Laughs]

And I don’t, of course, think that it’s enough to just treat them all alike.

I think that this Court has the duty and we’ll exercise it to find out what the law is that is applicable and we’ll try to apply it in — as it sees fit.

I do think that there’s a little more problem about this question of Mississippi Sound and the Pascagoula River under the Enabling Act than the counsel indicated, because when he — we agree that the statute did provide for an adjustment that the surveyors found that this made an encroachment on the counties.

And it had such language.

But it seemed to me that there was a disregard of a part of the language in trying to apply it, that it’s set out on the bottom of page 329 of the Government’s brief.

And then in — in ordering it, as the surveyors were directed to do, so ordered as to run in a direct line from the northwest corner of Washington County to a point on the Gulf of Mexico.

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

On that appeal what his argument was directed to just that far, whether this Mississippi Sound or Pasacula — Pascagoula at that time was the same as Mississippi Sound, but it seems to me disregards the additional language that 10 miles east to the mouth of the river Pascagoula.

Now, the mouth of the river Pascagoula doesn’t come out to those islands at the — that he refers to at the end of Mississippi Sound.

The Government concedes that that is inland waters, the Court so held in Louisiana against Mississippi.

And we concede that the problem in their case is taking that as the coast and giving them three miles or three leagues.

But as far as their Enabling Act is concerned, if they’re going to talk about that they’re really entitled to six leagues or something like and how you measure that.

It seems to us that this island, this language deals with the point that they come to the Gulf and whether they — whether Congress improperly called it the Gulf of Mexico, when it was going into Mississippi Sound, the inland waters, or not, they still did and you can’t find that’s — that point as being outside those islands if you also come to the question of the mouth of the river.

You have to deal with it as a point inside that particular Gulf.

So, we think that their claim is not supported anymore than any other as to the six leagues that that language was used to be sure to get these islands within the United States that we had a reason of the King George Treaty and it just carried over and there could be no purpose really in using that language, if you’re going to say it this goes right down six leagues in all the territories within it, because you do get.

Now, if you say that the line should be measured and come down to the Gulf and then eastwardly to the point, then you have to put those islands in, in order to get them in — within the description.

And we think that’s what was intended by Congress.

Generally, what that language is recognized as and we think that’s this case.

Potter Stewart:

Mr. Solicitor General, I am a little mixed up from my history.

Was Alabama acquired through Louisiana Purchase or was it acquired by cession from Spain?

J. Lee Rankin:

This Court held that under — in the case of Foster against Nielson, it was acquired by Purchase.

Potter Stewart:

By the Louisiana Purchase.

J. Lee Rankin:

Yes.

And if you recall there was some — the position of the Government was when it was acquired by the Purchase and the Court said it couldn’t look back at that, it was a political decision that was controlling upon the Court and that it must follow.

It couldn’t make up any other political position.

Potter Stewart:

So it didn’t come to that as part of West Florida?

J. Lee Rankin:

I don’t see — I certainly wouldn’t say, it’s contrary to the Court’s decision.

Potter Stewart:

It did.

J. Lee Rankin:

I thought this Court held that’s the law for me.

Hugo L. Black:

That the law was in effect.

J. Lee Rankin:

It’s [Laughter attempt] I think it is.

I think whenever this Court decides, that is —

Hugo L. Black:

I’m talking about the West Florida decision.

J. Lee Rankin:

I think it’s conclusive.

Hugo L. Black:

There it has done a part of (Inaudible)?

J. Lee Rankin:

The — the Court said in the decision that if — it didn’t indicate that it would come to a different conclusion, as I recall the case, it said, “Whether or not, it would arrive at the same conclusion as the Government, if it was examining originally.

It wasn’t open to it to examine originally.”

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

And it was bound by the decisions by the political branch of the Government.

That’s Foster against Neilson.

Hugo L. Black:

Mr. Ervin.

Richard W. Ervin:

Mr. Justice Black, may it please the Court.

Florida claims under the Submerged Lands Act are twofold, it claims that boundary exceeding the three-mile limit at the time the State entered, and a somewhat constitutional boundary approved by Congress prior to the Act but subsequent to State (Inaudible).

I will argue the first claim, Senator Holland will argue the second.

Well, we want to make a preliminary statement about the subject matter prior to getting into the basis of our claims.

The Truman Proclamation of 1945 declared that “Natural resources beneath the high seas contiguous to the coast of the United States within the Continental Shelf appertain to the United States and was subject to its control.”

This Court in the subsequent titled land cases, California, Louisiana and Texas held itself bound by the determinations of the political branches of the Government and international relations and recognized a three-mile national boundary which had been asserted in the nation’s diplomatic correspondence.

These decisions gave efficacy to the Truman Proclamation, by also holding, the United States had paramount rights in offshore resources to the exclusion of the coastal states that dominion ownership to the extent of such paramount rights followed inferior right of regulation in territorial waters.

But the Court also said that Congress could take further action regarding the subject matter and pointed to the clause in the United States Constitution authorizing Congress to dispose the property rights of the nation without limitation.

The Court also said in the California case that it could not go contrary to an act of Congress in this area of national power.

Following the suggestion of the Court, Congress enacted Submerged Lands Act and Outer Continental Shelf Act.

These Acts carefully delineated between dominion and imperium reserving in the United States a navigational servitude in the high seas, while dividing the natural resources of subsoil and seabed of the Continental Shelf between the States and the United States.

The Submerged Lands Act gave the States in Atlantic and Pacific, a three-mile limit granted offshore resources, but treated the States bordering the Gulf of Mexico differently because of historical and special considerations.

Each Gulf State was given the natural resources beyond the three-mile limit in the Gulf to a total extent of three leagues, if its constitutional laws prior to and after statement contain their boundary out to three leagues or beyond, or that Congress had approved for a State, such an extended boundary prior to the passage of the Submerged Lands Act.

Such extended boundaries are referred to as historic boundaries.

We, therefore, contend the Submerged Lands Act meant that if the Gulf States Enabling Act original constitution or Admission Act, which operated to affect this transition from a territory to statehood, either expressly or impliedly provided for a three-league or greater boundary, that entitled it to the grant of natural resources throughout three leagues.

Texas being an independent republic had a constitutional law prior to statehood different form a territory, which nevertheless, contained a three-league boundary qualifying it to receive the grant.

However, the Solicitor General says that the political branches of the Government in asserting policy and foreign affairs has in effect, either invalidated or shortly historic boundaries of States and navigable waters in the Gulf insofar as they extended beyond the three-mile limit.

He supports this decision by referring to the tide land cases of California, Louisiana and Texas.

We do not believe those cases so held.

It is true the Court decreed that the United States had paramount rights in all the natural resources offshore.

And that the three-mile belt is in the domain of the nation as well as the ocean beyond it, but there’s nothing in these cases directly dealing with the States’ historic boundaries and navigable waters which were consented to by Congress and all the Constitution could not be — could not be changed without the State — the State’s consent.

We think the States’ historic boundaries and navigable waters remain unchanged and they’re operated for some state domestic purposes, possibly for the venue for the state police regulations of some sort and of course as a measure for submerged lands grant.

These boundaries do not now or ever have impinged upon the delegated inferior powers of the nation in navigable waters.

That there has been some confusion concerning the States’ historic boundaries as they were laid to the national boundary as admitted.

The Tentative Draft of the American Law Institute in its reinstatement of foreign relations law of the United States points out that confusion, but says, it has been resolved.

It says that using historic boundaries for measuring the grants, the Submerged Lands Act appeared to put the question on a territorial basis.

This led to the clarifying decision in Alabama against Texas.

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Richard W. Ervin:

The States — this decision held, “There was no limitation on the part of Congress to dispose the property of the United States construed in this manner the Tentative Draft says the act does not depend on the breadth of the territorial sea plane by the United States on the international law.”

Which is to say, we submit that historic boundaries, as a measure of the grant, need not coincide with the national three-mile belt.

We think the historic boundaries are valid for some purely domestic state purposes.

Although, they may never have had any validity as a part of a national boundary, they still serve as the States boundaries for congressional domestic grants.

We think it is immaterial to a decision of this case while they have any validity in terms of international policy.

As Skiriotes against Florida, the Court said that international law is not concerned with domestic rights and duties.

Section 4 of the Act rules out the Government’s contention that this three-mile national boundary operate to shrink the States’ historic boundary at the moment of statehood to the limit of the national boundary, because it was imposed into the Act an extraneous standard of test, not within the context of the Act, and would produce inconsistent result with planning in historic boundary, referring to a State’s particular constitutional laws, which is not to be a prejudiced or questioned.

While this first claim is based upon the act of Congress, of March the 3rd, 1845, admitting it to the Union, and upon this Constitution previously authorized by Congress and adopted in 1838 previously, these documents carried boundary descriptions covering a chain of title to Florida territory delineated from cessions of Great Britain to Spain and finally to the United States.

Florida’s brief, page 64, a proclamation by King George III of Great Britain on October the 7th, 1763, officially and historically defines the boundaries of a territory of East and West Florida.

The keywords in the proclamation are that governments — “The governments of East and West Florida were bounded by the Gulf of Mexico including all islands within six leagues of the coast.”

Our contention is that these words are historically implied in Florida Statehood Constitution by a direct reference to antecedent titles and formal sovereign owners.

Hugo L. Black:

May I ask you one question?

Richard W. Ervin:

Yes sir.

Hugo L. Black:

(Inaudible) on which you —

Richard W. Ervin:

It is it is different Justice Black in this.

Our boundary is described simply by referring to the cession between Spain and the United States and refers to the Floridas, which were granted in the Treaty of Amity, Settlement, and Limits of 1819.

Hugo L. Black:

Well you used a language that is not —

Richard W. Ervin:

Sir, we have no —

Hugo L. Black:

— described within six leagues.

Richard W. Ervin:

Yes sir.

We used —

Hugo L. Black:

That language is contained in both.

Richard W. Ervin:

That’s — that is — it is similar contention.

Yes, sir, on our first claim.

Hugo L. Black:

That you’ll decide in the point in Alabama is what you go (Inaudible).

Richard W. Ervin:

Justice Black —

Hugo L. Black:

You are just — that is your description.

Richard W. Ervin:

That is our — that is not our description.

We don’t tie in, in so many words in that matter.

We simply to referred to the ancient — well we referred to the treaty between Spain and the United States as our boundary.

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

And we say that in the chain of title or the King George III’s Proclamation of 1763, which referred to the islands within six league of coast in the Gulf of Mexico or the part of the provinces that were ceded.

And in a subsequent treaty when Great Britain retroceded to Spain, it said all of the East and West Florida provinces and islands depended on said provinces.

That’s the background of our history, but we have no specific description as does Alabama.

Now, here is our contention.

Hugo L. Black:

Where is the —

Richard W. Ervin:

Sir.

Hugo L. Black:

Where is the Enabling Act in your brief?

Richard W. Ervin:

Oh that’s — it’s on page 64k sir.

Hugo L. Black:

Page 64.

Richard W. Ervin:

Yes, sir.

Hugo L. Black:

Your reply brief?

Richard W. Ervin:

Florida’s — yes, sir.

It — we referred to it on page 64 in the brief itself.

We don’t have a — a copy within the appendix.

It says — here’s what its — the Enabling Act says, “The State of Florida shall embrace the territories of East and West Florida, which by the Treaty of Amity, Settlement, and Limits, between the United States and Spain on the 22nd day of February, 1819 were ceded to the United States.”

And that — that is also incorporated in the Florida Constitution of 1838 preceding the act of admission.

We contend that it used this keyword to describe a perimeter boundary for Florida in the Gulf, and that the Government’s argument that only the islands themselves and not adjacent waters were boundaries is not (Inaudible).

Now, we rest our contention not only on the same basis that Alabama and Mississippi and Louisiana have presented, but also we think there’s a case that arose in New York upon which an annotation was taken and appears 81 Corpus Juris Secundum 918.

This appears in Alabama’s brief on page 4 where a state line is described to run so as to include all the islands and the body of water, such a description is not a direction to run it to exclude the intermediate waters.

That is not the full quotation, but that’s suggestive.

This case — I mean this annotation was based on the New York case of Mahler against Norwich & New York Transportation Company 35 N.Y. 352.

Hugo L. Black:

What page in your brief?

Richard W. Ervin:

Your Honor, that is not in our brief.

It is found in Alabama’s brief on page 4.

We adopted the arguments of Alabama.

And we are — we are taking a legal position that this six leagues from coast is a perimeter boundary and it contemplates with law as determined in the New York case.

It is sufficient to satisfy the rule that all of the intervening submerged lands, we will say, belong to the coastal State, in this case, to Florida.

Now, in New York, there was this description that started at (Inaudible) and it ran around Long Island and several other main islands and all the waters in the Bay of New York.

The Solicitor General says these were all inland waters, but if you read the case, you will find that the New York court, and I think this is important to Louisiana and Alabama and Mississippi’s case.

The New York stated they were the territorial waters of New York, and it appears to us, these waters fall in the special class of waters which Chancellor can’t refer it to as chambers of the sea followed by distant headings.

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Richard W. Ervin:

If you take a map of this group of islands between Connecticut and Long Island, of course, being one of them, you’ll find that Fishers Island lies right off the State of Connecticut, yet by the peculiar description, and it isn’t therefore the Atlantic Ocean.

It is incorporated in this perimeter belt of islands that appertain to the State of New York.

Hugo L. Black:

Would you mind giving me the citation —

Richard W. Ervin:

Yes.

Hugo L. Black:

— to the New York, because —

Richard W. Ervin:

Yes, sir.

It is —

Hugo L. Black:

— I couldn’t find it in the Alabama’s brief.

Richard W. Ervin:

Yes, I am sorry, sir.

It’s in the — it’s in the Government’s brief and it — but it is Mahler, M-A-H-L-E-R, versus Norwich & New York Transportation Company, 35 N.Y. 352.

We — we cite that case with the view that inland waters were not necessarily the basis of the New York decision as the Solicitor General said and instead that a description boundary covered the territorial waters in that particular situation.

That is the only case we can find on this subject.

And in addition, of course, to what was said in the case of Louisiana against Mississippi.

While the imperium of the United States on these waters is unquestioned, we do contend that the boundary lines of Florida in the Gulf headed down antiquity and reflected in Florida’s pre-statehood laws are confirmed by the Submerged Lands Act to the extent of granting natural resources out to three leagues.

Now, I want to show you about Florida’s specific situation.

We have a map here of the State and this red line is supposed to represent three leagues from coast.

We have the Florida keys archipelago that extends from the mainland of Florida nearly 150 miles off coast.

And we contend that when King George III proclaimed a six-league boundary, we can say a perimeter boundary including all of our — actually he said, including all the islands within six leagues of the coast.

We think he must have had some knowledge even in 1763 of these islands of Florida’s coast.

Some kind of description of a blanket in nature was needed to cover.

Anyway, we have — those, I am sure all of you probably have been in the area and you know the thousands of islands of — or coral islands are here in this area.

For example, there are enough island along here for the State to run a highway of 100 miles to Key West.

Now, we have developed going on all out in these islands, there are — there are projected parkways, new highways, fields of all the kinds, and I wish you would, if — if it has any relation to this question that this day, please bear in mind that all of the ground — the Gulf coast of Florida, we have this developed going on.

People have bought as far as a mile out in the Gulf and are filling in at areas not prior reached, and it has to be made such, they actually which have to be developed before it is of any real value.

But back in 1763, when this boundary was proclaimed to cover these islands, the situation was this.

Parks, and this is a part of the law of Florida and Florida Keys, parks operated in these Florida straights along the Gulf coast and they needed a wider boundary.

Actually, we have been able to measure the new depth of this water along here — here at many places, it’s not over three or four feet deep.

And along in here for example, throughout the whole area, it isn’t more than four thousand on the average.

And we think that it would certainly (Inaudible), if — if we’re now decreed, that everybody had to go and deal with the Federal Government so far as landfill development is concerned within its other (Inaudible).

Now, these clusters of islands all around the coast presented special problem and there was a real reason for a six-league perimeter boundary and a different, we think, consideration for Florida in that relation.

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

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Richard W. Ervin:

Remember please, if you will, that the Professor Sone (ph) who has briefed this matter for the Gulf coastal States, tells us that coastal states with — with very shallow shoal area needed a wider gird in order to protect coastal ship.

Now, I am — I am closing.

I want to say only this that it is a principle of law, it was stated many years ago, well, in 1909 by the Permanent Court of Arbitration in the Grisbådarna case, where it said, it is a settled principle of law of nation that a state of things which actually exists and it existed for a long time should be changed as little as possible.

This condition has existed of our Florida coast.

We thought we had the right to develop and then use it of all these years and we do believe that it does present a special situation.

For that reason, Florida case, we think justifies a perimeter boundary as a part of the original admission of — of the State into the Union.

I have made a mistake of referring to page 4 from the Alabama brief.

I’d like to correct it, it’s page 10.

As I understand it (Inaudible).

Richard W. Ervin:

Yes.

(Inaudible)

Richard W. Ervin:

Throughout in our history, yes sir.

(Inaudible)

Richard W. Ervin:

Reconstruction of Constitution, which Senator Holland —

Hugo L. Black:

(Inaudible) the part of it as I understand it (Inaudible).

Richard W. Ervin:

That’s –yes sir.

Hugo L. Black:

(Inaudible)

Richard W. Ervin:

That’s right.

Hugo L. Black:

That’s precisely the thing as in Alabama.

Potter Stewart:

Now, in addition to that, you have a (Inaudible) also don’t you, in connection with the rather extravagant claims with retention (Inaudible) Spain, in which he —

Richard W. Ervin:

That’s true —

Potter Stewart:

— tried to report by various Spanish Treaties.

Richard W. Ervin:

That’s right, yes sir.

Those are —

Potter Stewart:

(Voice Overlap) extent —

Richard W. Ervin:

Those are developed in our brief.

Potter Stewart:

Yes, but at some length, you had concededly – your argument is that – your additional argument (Inaudible)

Richard W. Ervin:

That’s right.

Potter Stewart:

— to your argument is — you are making an additional argument (Inaudible).

Richard W. Ervin:

Yes, sir.

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

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Potter Stewart:

West Florida when it came — the Alabama —

Richard W. Ervin:

I think that‘s correct.

Isn’t that right.

Hugo L. Black:

Part of it.

Richard W. Ervin:

Part of it.

Hugo L. Black:

The part (Inaudible)

Richard W. Ervin:

Yes sir.

Potter Stewart:

Now, the reason for my question to the Solicitor General is how — how Alabama came to country whether it was under the Louisiana Purchase or cession with —

Richard W. Ervin:

I thought it was —

Potter Stewart:

— Spain was to found out whether it shared your argument —

Richard W. Ervin:

Yes.

I — I thought it’s part of the (Inaudible) from Spain.

What goes in boundary claims (Inaudible).

Richard W. Ervin:

Yes, sir.

(Inaudible)

Richard W. Ervin:

I think Senator Holland is going to develop that Mr. Justice.

Spessard L. Holland:

Mr. Justice Black, may it please the Court.

I’d like to ask the pleasure of the Court with reference to whether we should proceed.

I see we have 10 minutes to the closing time.

Hugo L. Black:

That would be (Inaudible) we have cases that follow.

Spessard L. Holland:

May it please the Court.

I think that I should first refer very briefly to this map which I have been already adverted to by our Attorney General that the coastal province of Florida stands from its north boundary where it joins with Georgia on the Atlantic Ocean down the open Atlantic for several hundred miles, and then into the trades of Florida for — between the 150 and 200 miles, and then back to its mainland.

Then for a distance which as I recalled it around 470 miles, prolong the west coast of Florida bordering the Gulf of Mexico.

The claims of Florida, as we think, are substantiated by the facts under the law that relates to a three-league boundary, are confined to the Gulf-frontage along the Gulf of Mexico on the mainland of Florida.

I do not comprise the frontage northward on the Gulf of Keys or southward on the straights of Florida and the Atlantic Ocean of the Keys, nor eastward on the Atlantic Ocean of the mainland of Florida.

William J. Brennan, Jr.:

Under what — that does in the beginning point under which you are —

Spessard L. Holland:

That is Cape Sable.

Potter Stewart:

From that point north.

Spessard L. Holland:

It’s from that point north.

The —

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

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Hugo L. Black:

What is the point farther to the north?

Spessard L. Holland:

The point farthest to the north or west, Your Honor?

Hugo L. Black:

West, excuse me.

Spessard L. Holland:

The point farther to west is the point that where Florida joins Alabama as the mouth of the Perdido River.

And incidentally, the two states by compact, proved by Congress, have so clarified and made certain that point of joinder that any engineer could locate it and that has been done in the efforts to clarify the property claims between the States.

Now, the Attorney General has already said that State of Florida has the two claims, one under the first string of the ball which applies to the boundary of the State when it entered the Union, which claim, as I conceive it to be, is almost identical, if not identical with the claims of Alabama and of Mississippi and is quite similar to the claims of at least part of Louisiana.

West Florida extended at one time than the Apalachicola River, which is this location here all the way across to Louisiana.

And farther north, went to even farther west extending all the way to the Mississippi River.

But Florida was subject to be shunted back and forth between Spain and England and France on particular occasions and it so happens that we lost that excellent part of West Florida now comprised in much frontage of Alabama and Mississippi and some of the area of Louisiana during the course of shuffling.

We hope that will be the last of our good state which we shall lose at anytime.

The part of the Florida case which I shall discuss as quickly as I can in the time allotted, relates to that string of the ball, which reserves where the boundary has been extended in the Gulf of Mexico beyond the three geometric miles, but not to exceed three leagues by Constitution of the State and that Constitution approved by act of Congress.

It is our claim that the Constitution of Florida was approved in 1868 by Congress and that the boundary provision which is Article 1 of that Constitution and which is being carried forward as Article 1 in the present Constitution, the Constitution of 1885, gives us three leagues off the mainland of the coast of Florida in the Gulf of Mexico.

Hugo L. Black:

Well that’s the reason (Inaudible)

Spessard L. Holland:

That was — that was the Constitution of 1868 one was and 1885 one did not come to Congress, the 1868 one did come to Congress.

And —

Hugo L. Black:

Even with the other states involved, do they have a Constitution, the same Constitution.

Spessard L. Holland:

All of the other states that came back to the representation in Congress and to the opportunity to function again through their local governments had to draft their constitutions and present them under the wording on requirements of the Reconstruction Act for examination and approval.

Now, those are the two words used by the Congress.

Hugo L. Black:

And is that what Florida is relying on in the second phase?

Spessard L. Holland:

That is what Florida is relying on in the second phase.

Hugo L. Black:

Well Constitution of the same kind, which was approved by Congress of Louisiana and Mississippi and Alabama.

Spessard L. Holland:

Constitution were approved for all of the other states, if Your Honor please.

I can’t say they were of the same kind.

I am not familiar with it, but apparently, this boundary question, insofar as it affects the three leagues in the Gulf of Mexico, is peculiar to Florida.

If there’d be any other State that is affected by this question, I have not heard of it.

At the end of the war, the war between the States, sometimes called, the Civil War, the country was in great confusion.

And in spite of the fact that the State of Florida had adopted a new Constitution in 1865, the Congress required the State of Florida and all other states that were in the confederacy to frame new constitutions under the Reconstruction Act.

At the time, it was one of the great confusion in Florida, goes without question.

I think that the Court would take notice through the debates at least, that there was great confusion in Congress, because there was bitter argument of the most serious sort throughout this period.

As a matter of fact, the Reconstruction Act, as the Court well knows, was passed over the veto of the then President, President Johnson, and then the various acts supplemental thereto were passed, as I recall, over his veto and the act readmitting to representation of the States and reinstalling their civil government, so that they could begin to function, again was passed over the veto of the President.

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

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Spessard L. Holland:

And the Court will know and take judicial knowledge of the fact that relations between the Congress and the Executive were exceedingly strain and that the — after that impeachment began very shortly thereafter and came as I recall within one vote of — of success.

It was a time of bitterness and it was a time of suspicion, a natural suspicion, on the part of Congress, which did not include Senators and House and Representatives from the South in looking after the reorganizations of governments that were tempted by the southern states.

Now, I say that without any bitterness at all, it was very natural that such a situation should exist.

Felix Frankfurter:

Your point is that the — that the Constitution that was presented for re-representation would have been kept and scrutinized, is that your point?

Spessard L. Holland:

It certainly would.

That’s the first point I was going to make and Your Honor has gone ahead of me and I appreciate he’s mentioning it, that if any constitution — that every constitution that came up at that time was bound to be very closely and carefully scrutinized, because of the bitterness that existed, and that the well-founded suspicion because of the certain things that has — that has happened towards the good faith with those who were seeking so hard to reorganize their States.

And I think it unnecessary to remind this Honorable Court that those who had seats in the constitutional conventions were very frequently not long time established citizens of the State, because by the times of the Reconstruction Act, many of them were disqualified from either voting or accepting a — a representation as a delegate or holding office of any kind at that time.

So that the whole situation was one which was very scrambled and very confused, if it please the Court, I’m just getting started.

I see that the time has — has come for —

Hugo L. Black:

We’d be glad to hear you in the morning.

Spessard L. Holland:

Thank you very much.

You’re very kind.