United States v. Louisiana – Oral Argument – October 15, 1959

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 14, 1959 (Part 2) in United States v. Louisiana

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Earl Warren:

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

Hugo L. Black:

Mr. Holland.

Spessard L. Holland:

Mr. Justice Black and may it please the Court.

In my brief argument of yesterday, I’ve gotten to the point where I covered that part of the record showing that a convention was held at Tallahassee pursuant to the Reconstruction Act.

Beginning in January of 1868 ending with the signature of a new Constitution on February 25th which then was submitted to the people who adopted it in an election on May 4th, 5th and, 6th whereupon the new Constitution was certified to the President on May 27th.

The action of Congress was June 25th, 1868 by which the new Constitution of Florida along with the new Constitutions of the five other Act — States covered in that Act were acted upon by Congress, and as we contend, were approved by Congress.

It’s admitted by the Government that Article 1, the boundary article of that constitution, covered the submerged lands off of the mainland of the West Coast to Florida extending into the Gulf, a distance of three marine leagues, and there’s no argument there.

The argument is as to whether Congress approved that part of the Constitution.

Now, Mr. President — Mr. Justice Black, it seems to me that it’s appropriate to go to the facts insofar as they’re disclosed by the record and I shall attempt to do so briefly in the time that is allowed to me.

The President furnished to Congress on its request the two documents, miscellaneous document 114 and miscellaneous document 297 of the Second Session of the 48th Congress.

First of those covered simply the Convention Constitution, the one that was actually adopted.

The other, at the special request of the Congress, covered all three of the Constitutions which were considered by the Convention.

And one of which incidentally, was claimed by the Chairman of the Rock Convention which met briefly in Tallahassee following the departure of the majority.

It was claimed by that Convention to have been adopted, though that particular aversion was not submitted to the people.

Felix Frankfurter:

May I trouble you for the number of the second one Senator Holland?

Spessard L. Holland:

Number 297.

Felix Frankfurter:

Thank you very much.

Spessard L. Holland:

The interesting fact about those three different constitutions, one of which was adopted, the other two of which were not, is that all of them had an Article 1, boundary article.

All of them showed the same desire of the framers of the Convention and the people of Florida to extend their boundaries but all of them had a different — each of them had a different provision from the others relative to the distance in the Gulf of Mexico off the mainland of Florida, showing rather conclusive to the Congress when that document was furnished that here had been a matter of real controversy in the constitutional convention.

Where do we find those documents?

Spessard L. Holland:

They’re found on Florida briefs at the pages 18 to 27 and I had not intended to go into them in detail because of the limit of time and because I am sure the Court has considered and will continue to consider this fact.

But I wanted to call attention to the fact that any argument that the Congress did not understand that the boundary represented a change and that the boundary had been a matter of very great controversy in the Convention is clearly set aside when we consider these three different versions, which were submitted by the President of the United States in a congressional document considered by the members of both Houses in their hands and on their desks when this debate took place.

Does any of those drafts include the original six-league claims?

Spessard L. Holland:

No.

The one draft that followed the Constitution of 1865 which I referred to you yesterday and uncovered islands within five leagues, another covered a limit at five leagues, and the one submitted and ratified by the people covered a limit at three leagues.

And I think that’s important not to only showing the controversial nature of this subject in such a way that — I am advised by my assistant that that reference should have been to the appendix of the Florida brief rather than to the principal portion, pages 18, 27 of the appendix of the Florida brief.

I think that it’s important not only to show that the Congress was bound to know about this controversy, bound to know about the difference of opinion on the boundary provisions and the desire of the Convention to claim what it could properly.

But I think it’s also extremely important because the — the method of delineating that boundary which was chosen by the Convention and which was submitted to the people and ratified by the people and then submitted to Congress and passed upon there, is the limit three leagues which had already been enacted into the foreign policy of our nation in the Texas matter, because it’s so evident that somebody there must have known about that situation and the Treaty of Guadalupe Hidalgo.

This is only an argument on the conclusion.

I have already stated to the Court that the records except as to the journal of the Convention are a very sketchy and I think the confusion at those times easily explains that situation.

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 14, 1959 (Part 2) in United States v. Louisiana

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Spessard L. Holland:

So that how could Congress have missed the fact that here was a three-league boundary being submitted after controversy and here was a boundary of which comported where the Act of United States has ratified already by the Senate of the United States in approving the Treaty of Guadalupe Hidalgo because it’s quite evident that there were persons there who wanted to go farther than the three-league limit.

Incidentally, Mr. Seward, the Secretary of State who had had some thought in the border — in the boundary controversy prior to that time, was the Secretary of State at this time, was seating right here as adviser to the President and to the Congress and that there was no evidence of any objection from his part, nor for that matter is there any evidence or any objection on the part of any member of either the House or the Senate.

Now, we all know that Congress and particularly that Congress well knew the importance of boundaries.

This same Congress on March 1, 1867, had admitted Nebraska to statehood.

This same Congress is bound to have known the constitutional provision in Article 4, Paragraph (3), providing for the admission of new states and prohibiting the inclusion of parts of any other States without the consent of those States.

We wonder, Mr. Justice and Your Honor — Your Honors, whether Congress can be held to have been unconcerned at this stage about the possibility of conflicting boundaries, because they well knew that they were admitting to a representation and were acting upon the constitutions of six States, five of which were contiguous one to the other, and all of which were contagious to other States which were in the same situation that is operating under the Reconstruction Act.

And they must have well known that the boundary question was one of the important and it’s impossible for me to conceive that they, with the recent recollection of the admission of Nebraska and with full knowledge that in Enabling Act, admitting states, the principal part, as a matter of fact, except the little brief formula for the admission, is the delineation of the boundary of the States.

Mr. Holland, am I wrong — excuse me —

Hugo L. Black:

I just thought to ask you —

Spessard L. Holland:

Mr. Justice.

Hugo L. Black:

Did the other —

Spessard L. Holland:

— Black.

Hugo L. Black:

— state constitutions submitted to Congress would mean the boundaries?

Spessard L. Holland:

I’m unable to answer that question because I haven’t examined their constitutions sufficiently.

My question is on the basis — am wrong in thinking that it is important to your argument to show that at the time prior to readmission, the State of Florida had more than a three-mile boundary since otherwise if it did not — the effect of the Act of Readmission would have been to increase the boundary of Florida on readmission.

Spessard L. Holland:

It’s certainly true that the State of Florida had the claim under prior acts in ancient history about which the Court has heard to a six-league boundary.

That depends on the island including the island phraseology.

Spessard L. Holland:

That’s correct and also from the fact that in the Treaty of 1819 and in the conveyance of the two territories of Florida to United States, the words, while referring to the earlier history and identifying it so that it could be pursued, also spoke of the two territories being included in the State and the adjacent islands which were administered.

I don’t believe that’s the exact word but that’s the substance in connection therewith.

Mr. —

Charles E. Whittaker:

The words I think was dependent once of that territory.

Spessard L. Holland:

Depend of the form I think — I think, Mr. Justice.

Now —

Potter Stewart:

Well, is it necessary to your argument Senator to a show us that the boundaries, prior to the 1868 Constitution, were at least as extensive as contained in — in that Constitution?

Spessard L. Holland:

I don’t think it is because I think that the State by its Act and the Congress by its Act were the two bodies who had the full authority to set the boundary at this time.

Potter Stewart:

And the words mean —

Spessard L. Holland:

And I think it’s immaterial as to whether the boundary was receded at that time or was a — jotted out in accordance with whatever the interpolation of the law in that situation would be.

Certainly, the State thought that it had six leagues at that time.

Potter Stewart:

But you wanted — what is necessary as for you to show that these boundaries were approved by the Congress?

Spessard L. Holland:

That’s correct.

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 14, 1959 (Part 2) in United States v. Louisiana

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Felix Frankfurter:

The constitutions while they were submitted was in response to the Act of March 2nd, 1967 calling for such submission —

Spessard L. Holland:

The —

Felix Frankfurter:

— other — other constitutions of the States as it weren’t suspended as part of your —

Spessard L. Holland:

Mr. Justice Frankfurter, you’re exactly correct.

The moving party in this matter was the Congress of the United States and the meeting of the constitutional convention which I’ve already said, followed a similar one in 1865 in which the State had tried to adjust itself to its new situation was held upon the mandate of Congress.

Felix Frankfurter:

The phrase of the Act was, for instance, constitution shall have been submitted to Congress for examination and approval and Congress shall have approved them.

Spessard L. Holland:

Mr. Justice Frankfurter —

Felix Frankfurter:

Or if the document, would you say constitute such formal approval?

Spessard L. Holland:

The Justice is exactly correct in his — in his statement and I want to mention at this time a fact that seems to have been overlooked by learned Government counsel.

And that the — the Act also require — provides in an earlier portion of it, that the new constitution must be “in conformity with the Constitution of the United States in all respects.”

So there is more involved here than a mere question of Republican form of government and there’s more involved here than a mere question of loyalty as suggested by learning counsel.

Felix Frankfurter:

Well, but —

Spessard L. Holland:

But there is a general question and there is a general requirement not only of submission for examination and approval but then a requirement of actual approval of that new constitution.

Felix Frankfurter:

Does the Constitution call for a particular boundary or particular claim by States that either seek submission or as in the case of the seven states that sought of pre-representation.

Spessard L. Holland:

The Constitution —

Felix Frankfurter:

What’s the relevance of that thing to what you called before?

Spessard L. Holland:

The Constitution insofar as the admission of new States requires that they may not be permitted to be carved out of another State or to take any part of another State without the approval of that State and thus therefore require the careful examination and approval of Congress with — within the meaning of that rule and requirement.

Felix Frankfurter:

Well, I suppose — I suppose Florida, in seeking again their representations to Congress, couldn’t constitutionally submit a constitution, which is required for being submitted and take a portion of another — a portion of another State, could it?

Spessard L. Holland:

I think you’re completely right and that brings me to my next point which will require me to go out of this record but into other matters of which the Court may take judicial notice.

William J. Brennan, Jr.:

Excuse me Senator, before you go on to that.

In the gulf could there been any other State competing for the boundary claim by — barred in the Constitution?

Spessard L. Holland:

There has not.

William J. Brennan, Jr.:

Could there have been at that time because even — even if —

Spessard L. Holland:

There —

William J. Brennan, Jr.:

— and we were enlarged from what it had been even on that premise, would this have taken anything from any other State?

Spessard L. Holland:

There might have been on the border with Alabama but there is no such claim and there was no such fact.

The real fact is though, that because a lab had existed for many years and was still existing at that time, and I will quote, I will cite the Supreme Court case in which that is well referred to.

It’s U.S. 123, page 1, the case Coffee against Groover which outlines the — and that’s a case in 1872, I believer, outlines that the fact that boundary dispute which had affected the 2000 square miles of Florida’s boundary had existed before the purchase of the Floridas.

It was first in argument between the United States for Georgia and to the Spanish Government.

And second, then an argument between Georgia and the United States for the territory of Florida and then finally, an argument between the two States which found itself coming into the Supreme Court.

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 14, 1959 (Part 2) in United States v. Louisiana

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Spessard L. Holland:

The case would be found 11 Howard, 293.

And the much more full discussion of the case is found in U.S. Report 58 at page 478, when the Attorney General of the United States has sought intervention and was allowed intervention for certain purposes.

Those pages, 478 to 524 show an exhausted discussion of the subject.

I am sure that here is a subject matter that was first in international dispute, then in dispute between Georgia and the territory of Florida, and then in dispute between the States leading to the filing of a suit in this very Court and to the long argument of it and to the writing of that opinion in the case that I have just mentioned, U.S Reports 58 at page 478.

Felix Frankfurter:

Senator Holland, I didn’t mean to mislead you by suggesting, by implying that boundaries submitted by Florida, if the claim of Florida were to be sustained, would have involved taking something that belonged to another State which constitutionally couldn’t be done.

What I meant to suggest is that since other portions of the boundary of Florida, not relating to our problems, might have done that.

Presumably, when the constitution was submitted with boundaries, it’s a little difficult to say that Congress paid no attention to boundaries that the boundaries were irrelevant to the action which it took in accepting the submission.

Spessard L. Holland:

I think that position is completely reasonable and I think that any other position would be completely unreasonable, because here with knowledge of Congress — because it would have there on two occasions long historical documents printed on this subject.

I’ll give the references to them, documents 77 of the House of Representatives of the 23rd Congress, 1st Session.

William J. Brennan, Jr.:

Are these in the brief, Senator?

Spessard L. Holland:

They’re not, and that’s the reason that I am giving —

Hugo L. Black:

What — what number is that document?

Spessard L. Holland:

Document 77 and —

Hugo L. Black:

Which Congress?

Spessard L. Holland:

Of the 23rd Congress, 1st Session, and then — that was in 1831.

Hugo L. Black:

What is it that related to?

Spessard L. Holland:

That related to the contents between the territory of Florida and the State of Georgia which was going on at that time.

And it’s a very compendious document of 120 pages.

And the second document, a much longer one, is miscellaneous document 25 of the Senate of the 33rd Congress, 2nd Session, 1855.

This was reprinted, and it’s a document of 396 pages.

Felix Frankfurter:

What’s that about?

William O. Douglas:

What Congress —

Spessard L. Holland:

That’s about the same controversy.

William O. Douglas:

What Congress was that?

Spessard L. Holland:

That was the 33rd Congress and —

William O. Douglas:

(Inaudible)

Spessard L. Holland:

It’s the whole document, if Your Honor please.

William O. Douglas:

Document 25.

Spessard L. Holland:

Document 25 of the 33rd Congress.

That’s the Senate document and the other the House one.

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 14, 1959 (Part 2) in United States v. Louisiana

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Spessard L. Holland:

And I — I — I am going into some details to give this information, because I do want this Court to see at least as I see it that here was a controversy then pending in the United States Supreme Court in which not only the two States were joined in combat but in which the Attorney General of the United States had asked to come in because certain federal public lands had been deeded and were still held and there was an important federal question involved there.

That is in the 2000 —

William J. Brennan, Jr.:

Could you point on the map where the location of the area in dispute at that time?

Spessard L. Holland:

The location of the area in dispute ran from this point which is the confluence of the Flint and Chattahoochee rivers that form the Apalachicola to this point.

And the Court will observe that that is an straight line in the sense that it’s far — it’s the straight but it doesn’t follow a degree of latitude.

And it runs from that confluence to the head of St. Mary’s River.

The State of Georgia claimed that the head of the St. Mary’s River was the ahead of South Fork of the St. Mary’s River which headed up, and that’s not shown on this map, but it heads up in about this position.

So that the payment was involved was (Inaudible) by comprising 2000 square miles of what was then thought to be the most valuable land in the State of Florida, because little value it had at that time had been assigned to the lower part of the peninsula.

And the fight was a very bitter one.

The case which I have cited, U.S. 123 page 1, gives the history likewise and shows that the State of Florida and the State of Georgia out of Court reached a settlement which the State of Florida accepted in 1861 and which the State of Georgia accepted in 1866.

So that we’re right in the middle of this controversy at the very time of the war and at the very time that these troublesome questions came up.

William J. Brennan, Jr.:

They are now then in the submitted constitution, this course from that strait to the head of the St. Mary’s River?

Spessard L. Holland:

That’s correct.

William J. Brennan, Jr.:

That reflects the settlement then, does it?

Spessard L. Holland:

That’s — that’s correct.

And they — there — there’s just no probability or even possibility as I see it that the Congress, well knowing this situation, and the Attorney General, well knowing the situation, and the two States while not represented certainly having representatives to speak for them here in the capital of the nation, would have left unnoticed any departure from an accurate delineation of that boundary.

And it’s certainly impossible to believe that the Congress gave no attention to that boundary under those conditions.

Hugo L. Black:

Is any mean a part of that involved (Inaudible)?

Spessard L. Holland:

None at all, but the if the Congress looked at the boundary articles, they were looking at the entire article which covers both the land and the water boundaries.

And incidentally, the same disparity which exists among the three constitutions as to the water boundary and the gulf does not exist here.

Potter Stewart:

Senator Holland, did this controversy or any controversy occur after 1868 between Florida and Georgia as to territory?

Spessard L. Holland:

After 1868?

Potter Stewart:

Yes.

Spessard L. Holland:

No, the —

Potter Stewart:

So is settled for anything.

Spessard L. Holland:

The State Georgia accepted, was the last party to accept in 1866 and the Congress approved it in 1872.

But the two States — and it took the — it took the approval of Congress ultimately because —

Potter Stewart:

And it took, and — and that — what Congress approved was this very boundary contained in the 1868?

Spessard L. Holland:

Congress approved, but I wouldn’t want to give the impression that it approved the whole article —

Potter Stewart:

No.

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 14, 1959 (Part 2) in United States v. Louisiana

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Spessard L. Holland:

— boundary but approved this particular part of the boundary in 1872 after this time, because it was involved in the combat between —

Potter Stewart:

Between the two States.

Spessard L. Holland:

— the States of Florida and Georgia.

And the Court will see upon examination of the two documents that the matter came to Congress repeatedly and that repeated resolutions were introduced and some passed seeking to dispose of this troublesome question.

Now, I do not like to indulge in semantics and I don’t think I am in calling attention to the fact that the action of Congress was mentioned many times during the debate by members of the Congress as being action to approve or an approval, and as following the — the mandate of the Reconstruction Act which required approval.

I won’t exhaust that point but it would be found on pages 63 to 72 of the Florida brief.

Likewise, there were several contemporary or early interpretative statements.

This didn’t affect only the boundary question, this affected the question of the State to begin to function, take over its election machinery, even the right of legislations to begin to pass acts, the right of the Governor to be something more than a provisional Governor.

And those questions came up in several instances before the military and Attorney General Hoar of the United States at that time, on August 28, 1869, addressed the Secretary of War with a long letter submitted in compliance with his request of which — in which this quotation is found.

“Until Congress should have approved the Constitution, the legislature could not pass any act.”

And he held that the Congress did approve the Constitution.

Hugo L. Black:

Was there a discussion in the Congress on the Submerged Land Act?

Spessard L. Holland:

There was none.

Hugo L. Black:

To this particular clause of that bill of the Congress.

Spessard L. Holland:

There was no discussion and —

Hugo L. Black:

To this clause in the bill which refer to boundary that have been approved by Congress.

Spessard L. Holland:

Well, there was no discussion of the submerged lands question in the Congress which we think makes a stronger case for the fact that nobody —

William J. Brennan, Jr.:

I don’t think that’s —

Spessard L. Holland:

— objected to.

William J. Brennan, Jr.:

— the question Senator.

Hugo L. Black:

No, no, no.

William J. Brennan, Jr.:

It’s whether at the time on the discussion of the Submerged Land Act in 1953.

This is what the discussion and what approval meant in relation to the approval of the Constitution.

Spessard L. Holland:

— frequent discussion and that point was made abundantly clear many times that the Congress felt or at least those members of Congress asserting that position of which they were many that approval had been had at that time.

And it wasn’t deniable gesture to put into this bill the two conditions; one, the boundaries at the time of statehood and the other, the boundaries in the Constitution heretofore approved by Congress.

Felix Frankfurter:

What do you do —

Spessard L. Holland:

It — It was shown many time in the debate that Congress understood that that latter provision pertain to this 1868 matter.

Felix Frankfurter:

May I ask you, what — what comment do you make to the Government’s argument that the Act of 1867 contemplated the boundaries that theretofore existed in view of the debates that’s in opinion indulged in striking out the so called that it would be unnecessary to (Inaudible)?

Spessard L. Holland:

Well, I believe that that debate was in the later time but what — regardless of when it was, if the Congress so intended, it was certainly their duty to look to see whether the task done by the Constitutional Conventions carried out that obligation.

I do not think however that that obligation was imposed by that debate at that particular time.

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 14, 1959 (Part 2) in United States v. Louisiana

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Spessard L. Holland:

Now, there were later reference in the Court cases, and I am sorry I have to rush along, but in three instances, the — this Court referred to this action of 1868 always it was obiter, Wilkes County Commissioner against Coler, a 1901 case by Mr. Justice Harlan and he said that “The constitution” – at that time it was the Constitution of North Carolina – “was approved by the Congress, June 25, 1868.”

In the case of Beauharnais and so forth, 343 U.S., taking place just a few years ago 1942, I believe it was, Mr. Justice Jackson quoted this act and the action of Congress in these words “that these constitutions” were nevertheless approved by Congress.

And in the case White against Hart 80 U.S 649 in 1872 cited by opposing counsel.

We think that case is much more strongly in favor of our position because he says in his — in his opinion, Mr. Justice Williams says that the this constitution was sanctioned by Congress and upon looking at the meaning of that word, we find that is at least as strong as the meaning of the word approved.

Now —

Hugo L. Black:

May I ask you, so far as the boundary described referred to the Perdido River?

Spessard L. Holland:

Yes, sir.

Hugo L. Black:

I have before me the Constitution of Alabama approved by the — the same Act so far as described.

And this refers at the beginning of Perdido River (Inaudible) including all islands within six leagues to shore.

That was approved at the same time, wasn’t it?

Do you know whether the two — either one of the two was struck by Congress.

Spessard L. Holland:

I don’t believe either was and incidentally confusion later arose as to the two descriptions because of the erosion at the mouth of Perdido River.

So, the two States set up a commission which worked out that boundary and submitted it to Congress and Congress approved the — the Compact, as I think I mentioned —

William J. Brennan, Jr.:

What year was that Senator?

Spessard L. Holland:

That was quite recently, I think four or five years ago.

I am sorry I don’t have the exact year.

We can supply that.

William J. Brennan, Jr.:

So that’s — that’s quite recently.

Spessard L. Holland:

Well now, I say that I have very little time left.

I want to call attention to —

Hugo L. Black:

Your time is up but you go right ahead for a short time.

Spessard L. Holland:

Well, I’ll make it just as short as I can and I appreciate the indulgence —

Hugo L. Black:

It’s all right.

Spessard L. Holland:

— of Mr. Justice Black.

I hope it has the approval of the Court.

Maybe I am used to talking in greater length in the forum that I belong to but I’ll try to comport myself in accordance with the —

William J. Brennan, Jr.:

And as far as the yield — as the yield of the questions (Inaudible).

Spessard L. Holland:

Well, I am supposed to yield whenever any distinguished member of this Court requests me to do so.[Laughter]

Felix Frankfurter:

Any how you —

Spessard L. Holland:

I don’t have the right of refusal that I would have elsewhere.

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 14, 1959 (Part 2) in United States v. Louisiana

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Felix Frankfurter:

But you haven’t thought that.[Laughter]

Spessard L. Holland:

My next point.

I want to make it only briefly is that Florida proceeded to assume jurisdiction and make use of this Submerged Land in the gulf and there’s many, many indications of that not only in our statutes to which I shall not refer, but particularly to references in three federal cases.

All appearing in the briefs, the case of Cunningham against Skiriotes at page 53 of the Florida brief, the case of Pope against Blanton which was a three-judge federal court, in the District Court of Florida and the case of Skiriotes against Florida in this Court where the opinion written by Mr. Chief Justice Hughes mentions the controversy but found the easier ground to decide it than to — at that time and upon the evidence then submitted, decide where the boundary laid.

And all of those cases though show affirmative that the State of Florida in the exercise of its own jurisdiction and sovereignty, they had statutes applying out to the three-league line and these cases all arose outside of the three-mile line and between at the time the three-league line as shown in the decision.

And that purpose for that particular jurisdiction shown in those three cases was the regulation of the sponge industry which is an important industry of the West Coast of Florida.

I shall not labor that point but all this cases showed clearly that Florida exercised the jurisdiction and used it and claimed it.

Now, when it came to this case and I again will have to proceed more rapidly than I have expected.

The Congress proceeded very carefully.

It heard the testimony of the three federal executives who are most involved in this except the President and they received a letter from him, which has already been mentioned by another in the argument.

But Mr. Secretary McKay of the Interior Department testified his testimony of page 30 of Florida brief.

Mr. Attorney General Brownell at page 957 of the Senate Hearings and in the Texas brief also, both of them affirmatively stating that as to the case of Florida, their boundary was out three leagues in the gulf off of the mainland coast.

And then we call the Department of State — the Senate called the Department of State and Mr. Tate, Assistant Solicitor but testifying for the department, testified to a great caution and his testimony will be found in the Senate Hearings.

But I’ll refer to three places, page 1053, page 1078, page 1086 because I cannot at this time read those.

But the substance of it was, first, that he recognized the fact that in the case of Florida and one other state, Texas, there was precedent for the carrying out of the boundaries to three miles.

And he also testified, and this is the matter which I want to call especially to the attention of the Court that in this troublous case that confronted him, it could by settled without trespassing upon the foreign policy of the United States by having the Act refer only to the development and production of the seabed and not to the extension of the territorial waters out there.

Furthermore, in the — the —

Potter Stewart:

Mr. Tate did not address himself of course to the precise language of the bill, he has enacted it.

Spessard L. Holland:

No.

But he showed the knowledge of it, stated that Florida and Texas were the two exceptions and in his testimony said in so many words that here was a case in which Congress could find the solution which had no disrupting effect whatever on the foreign policy.

That’s the point that I want to make.

And the letter from Mr. Secretary Dulles signed for him by Assistant Secretary Morton makes that same point.

And in pursuance of that point, as the records here will show, the Senate Committee proceeded to amend the Act so as to make it in the alternative so that very clearly, it would cover only, might be construed to cover only the assignment of the rights of development in the seabed.

The letter from Mr. Dulles is found on page 1088 on the — in the record of the hearings of the Senate and — Senate or House — Senate.

And I’ll just read this last sentence because it’s so meaningful.

“Hence, a grant of jurisdictional powers of the state in order to be consistent with the traditional position of this nation would have to be restricted to the purposes indicated above.”

Those purposes as the Court will find were the purposes of operation of the submerged lands.

And incidentally, the Committee immediately met — immediately met that situation by producing from the bill which had been filed as drafted by 44 Attorneys General producing various changes and amendments which may — would make it clear that this Act could be construed as I’ve indicated.

The Court will find on page 5 of the Senate report, the sentence which makes that clear.

The measure also provides that in addition to title and ownership but distinct from them, the States shall have the right and power to manage or administer, at least develop and use such lands and natural resources in accordance at the time of the Senate Joint Resolution 13.

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Spessard L. Holland:

And whatever rights the federal government may have in such management and administration or established in and assign to the States.

Hugo L. Black:

I am afraid Senator, your time has expired up and —

Spessard L. Holland:

Well, I think —

Hugo L. Black:

Could you stop there?

Spessard L. Holland:

May I — may I trespass only in this regard.

I would like to give the numbers of the Amendments if the Court will indulge it —

Hugo L. Black:

Yes.

Spessard L. Holland:

— which carry out that same objective and they are Amendments — numbers 28, 29, 30, 31, 32, and 33, all appearing on page 19 of the report and Amendments 69 and 72 appearing on page 20 of the report.

There isn’t any doubt about that action having been taken.

You can ask your associates the dictation numbers of the records of (Inaudible)

Spessard L. Holland:

On page 1088 of the Submerged Land Act Hearings.

One more statement and I am through.

This effort in the Congress was a serious effort to compose serious differences.

In connection with this bill, we produced also the Outer Continental Shelf Bill and we recognized federal rights and the area covered by that to about nine-tenths of the submerged lands within the continental shelf and to about five-sixths of the estimated oil and gas to be found in the submerged land.

Our effort was — or the effort of Congress, and as shown clearly by the records, was a very careful one after the submission of all the statements from everyone in government or out of government that were felt to have an interest in this matter and I — and I expressly hope that it will meet with the approval of the Court in this latest case as it has already with reference to the three-mile limitation, because we think that is greatly to the interest of the nation and of each State involved to have the matter settled so that the development of any resources that maybe there may go forward in an uninterrupted fashion.

I thank the Court for its indulgence.

Hugo L. Black:

Mr. Swarth.

George S. Swarth:

Mr. Justice Black, may it please the Court.

Yesterday, Attorney General Ervin referred to statement by the American Law Institute to the effect that this Act does not depend on the breadth of the territorial sea.

In connection with that, I would like to compare what Senator Daniel told the Senate Committee when he was discussing the Act.

He said, “There is no question but that the Holland Bill simply gives to the States the lands within their original boundaries within their territorial waters at the time they entered the Union”.

You’ll find that quoted on page 24 of the Government’s reply brief.

It is our medium-sized brief.

Do you say that embraces the concept of shrinkage (Inaudible)?

George S. Swarth:

Well, I think this shows that the boundaries referred to in the Act are the boundaries of territorial waters.

I don’t think that directly gets to the question of shrinkage but rather the kind of boundary we’re talking about.

Senator Daniel said explicitly with the territorial water boundary and I think the Act having been represented in that light to Congress, it’s hardly open to the States now to say that it mean something other than territorial waters.

Hugo L. Black:

Well, it could then possibly be correct so far as the second clause is concerned relating to or — which has been approved by Congress.

George S. Swarth:

No, I think not.

He says within their territorial waters at the time they entered the Union.

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Hugo L. Black:

If that one State enter the bill —

George S. Swarth:

Yes.

Hugo L. Black:

— but has two, there is an alternative, is there not?

George S. Swarth:

Yes.

Hugo L. Black:

Yes.

George S. Swarth:

Well, I — I think of course Senator Daniel was concerned with the Texas aspect of it and I think for that reason, he was concentrating on the time they entered the Union.

But the kind of boundary that is involved whether it is a territorial water boundary or whether it is some other kind of a boundary altogether, I think must be the same whether it existed when it entered the Union or was subsequently approved by the Congress.

There was no indication that Congress was thinking of a different kind of a boundary of — in the one case and in the other.

Hugo L. Black:

Well, I suppose in reference to that clause, the question is more likely this, whether since the State has been admitted into the Union.

Congress has approved the boundary, which went out beyond the three-mile limit.

George S. Swarth:

Yes.

Yes, but I think that means a territorial water boundary, not — not a special boundary of some other sort as has been suggested to pay a —

Hugo L. Black:

Do you mean you think it means limitation that Congress couldn’t have approved it over three miles?

George S. Swarth:

No.

I mean I think it is the kind of a boundary that they were speaking of — of — if it was three miles or if it was more than three miles, of course we don’t think it could have been.

But in any case, we think they were speaking of a boundary of territorial waters.

Hugo L. Black:

But if it was approved, if Congress — if it could be shown, and let’s say it could, indicated one way or the other.

I am just trying to get your position of what you said there to show that.

Suppose Congress had expressly approved a constitution which said that we now claim more than three miles out, we claim six to nine miles and that has been done in 1850, 1890, and 1910, would that come within the Act?

George S. Swarth:

Oh, yes.

Yes indeed.

Hugo L. Black:

So it’s a question of whether it has been — whether Congress has approved it since.

George S. Swarth:

Yes, exactly.

One more comment on this American Law Institute statement.

We questioned the reporter of the institute about it and he replied that his purpose had been to indicate that the division of these submerged lands could be made without affecting the question of international boundary, the three mile limit, which of course it could be done.

And he said it was not intended to express an opinion as to what Congress had done with respect — what Congress had done with respect to any particular Gulf State in passing the Submerged Lands Act of 1953, if the comment gives any different impression as the result of an inadvertence.

It will be corrected in the next draft.

Felix Frankfurter:

Well, the inadvertence was not — he put in words, but he didn’t mean to put in.

Inadvertence was, as you thought, was a misconstruction of what he wrote, isn’t that right?

George S. Swarth:

That is correct.

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George S. Swarth:

He had not intended to construe what the Act actually did but was speaking rather of what Congress could do.

Felix Frankfurter:

He didn’t mean to write what he wrote.

It doesn’t mean that could be used in the way in which you say it should be.

George S. Swarth:

That is correct.

Now, coming to the particular problems of Florida as was observed yesterday.

Florida has two strings to its bow; it’s the only State does.

The reason for that is that in the other States, there was no other instance where a different boundary description appeared in a reconstruction constitution from the description that had existed when the State became the member of the Union.

So that the — the 18 —

Were there description to the character in the other State Constitutions?

George S. Swarth:

There were in some and not in others.

Question was asked — Mr. Justice Black asked whether other constitutions approved or dealt with by the Act of June 25, 1868 contained boundary descriptions.

The Constitutions of South Carolina, Louisiana and Georgia did not.

The Constitution of Florida did and I believe —

Hugo L. Black:

Which other ones did?

George S. Swarth:

I believe North Carolina and Alabama were also covered by that Act.

Hugo L. Black:

Alabama (Inaudible) in its constitution from the one that I (Inaudible).

George S. Swarth:

I am not — I accept your statement on that.

Hugo L. Black:

(Inaudible)

George S. Swarth:

But there were constitutions which did not contain.

Hugo L. Black:

Are you drawing a distinction between Florida’s rights and opinion it had under its Reconstruction Constitution and Alabama’s rights, if it doesn’t?

George S. Swarth:

No.

I am not Mr. Justice Black.

Now, Florida’s — the first phase of the first string to Florida’s bow is that Spain had made extended claims of maritime boundary.

And to establish that, they referred to a variety of — of treaties and arrangements of one sort and another which established quite a variety of distances for different purposes and then different parts of the world, some relating to Spanish coasts, some relating to foreign coasts.

We think that no consistent pattern — quite evident, no consistent pattern appears from those.

You have distances of three leagues, two leagues, sight — sight ten leagues.

Potter Stewart:

S-I-G-H-T?

George S. Swarth:

Yes.

Hugo L. Black:

Are those gulfs?

George S. Swarth:

No.

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George S. Swarth:

These are all over the world.

One was fishing within — there is to be no fish — no Spanish fishing within three leagues of British coasts in the Gulf of St. Lawrence, one forbad boats under 100 tons displacement to carry contraband within two leagues of Spanish ports.

Hugo L. Black:

Were there likelihood in the descriptions of the entrances on the gulf coast?

George S. Swarth:

None of these related to the gulf coast.

Hugo L. Black:

They — were there divergences or were those all six leagues of Spanish grant.

George S. Swarth:

We find no Spanish pronouncement relating to the Gulf Coast in this respect.

There was silence.

However, in 1797, there was a Spanish cedula announced by the King which said this, “The immunity of the coasts of all my dominions, all my dominions, will not be measured as was done until now by the doubtful and uncertain range of canon but by the distance of two miles of 950 places each.”

Those are almost exactly geographic miles.

Now, that remained in effect from 1797 when it was announced until many years after Florida was seated to the United States in 1819.

We think that if Spain ever did have any different policy, that policy was superseded in 1897 by this very definite pronouncement and which remained in effect until 1819.

Now, as to the British claims, that of course rests on King George’s proclamation describing Florida’s as bounded by — I have to say, by the Atlantic Ocean of the Gulf of Florida including all islands within the six leagues to the coast.

Well, the Solicitor General has already explained our views about the effect to be given to a statement including all islands within a certain distance.

We think it means what it says, islands.

The suggestion was made yesterday that effect must be given to every part of a description and that we’re trying to read something out of it.

And we think on the contrary, the States are trying to read something out of it.

If it had simply said extending into the gulf six leagues, then certainly, they would be in the right as to what meaning of that phrase was.

But when it says — the addition of the word “islands” does not necessarily add to the scope of the description I think it restricts it including all islands within six leagues.

We have the principle expressio unius est exclusio alterius est, and we think by mentioning islands, they excluded other, the water in the submerged land.

Now, the case of Mahler against Norwich & New York Transportation Company was mentioned.

That case is discussed in the Government —

When it came to the part of constitution readmission, although its claim had been so described in the historical period.

It is asserted in terms not of islands but in terms of an absolute three-league boundary —

George S. Swarth:

That is correct, Mr. Justice Harlan.

— in 1868.

George S. Swarth:

Yes.

I am speaking now of the first aspect of their argument and I will come to this other in just a minute.

Yes, all right.

George S. Swarth:

This Mahler case is discussed at pages 83 to 85 of our reply brief or medium-sized brief.

And I think it is enough to distinguish that case simply to point out the description that was involved there.

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George S. Swarth:

It began a line — it was the perimeter of New York that is being described, the State of New York.

It began in Long Island Sound at the Connecticut boundary, went up the river and around New York counter clockwise and came to Sandy Hook, which of course is the southern headland of New York Bay.

And it said from Sandy Hook to the place of beginning which was the Connecticut boundary in Long Island, in Long Island Sound.

“To the place of beginning in such manner as to include Long Island, Staten Island,” – there’s a long enumerated list of islands – “and all the islands and waters in the Bay of New York and within the bounds above described.”

We think that description is so different from the ones we have here.

It says to draw the line in such manner as to include the islands.

We think the Court construed it in the only way it could possibly be construed.

It did just that, it drew the line around the islands and taking in the water which fell within a line so drawn because it says, “And all the islands and waters within the bounds above described.”

Well, that is not the kind of description that King George used in his proclamation or that the — appears on the descriptions of these other Gulf States and we think that entirely distinguishes that.

Who wrote the opinion of the Court of Appeals (Inaudible)

George S. Swarth:

I am sorry.

I can’t tell you, Mr. Justice Harlan.

We think even if Great Britain and Spain had claimed more than three miles, it was of course the position of — of the United States that international law does not permit such claims, that this Government refused to recognize such claims.

And we think that the Court should accept that view of the international law and should not recognize a foreign government as having possessed what this Government refused to recognize it as possessing.

In any event, Florida does not derive its title from Spain or from Great Britain.

Florida derives its title from the United States.

It was their possession and their territory for many years before it became a State.

And certainly, when the United States acquired Florida from Spain, the maritime boundary policy of the United States became applicable to it.

And whether the prior sovereigns that claimed more or less, we think it is quite plain that at that point, the United States imposed its three-league policy on the territory of Florida.

Actually, what we think — a three-mile policy, excuse me, on the territory of Florida.

Actually, we think what happened was that the Spanish boundary of two miles was expanded to three miles when we acquired Florida.

And Florida of course as a territory —

Felix Frankfurter:

You would say we got that as a matter of international law and not because His Catholic majesty ceded it to us.

George S. Swarth:

Exactly.

Felix Frankfurter:

He couldn’t cede what he didn’t have according to your views.

George S. Swarth:

That is our view for precisely, Mr. Justice Frankfurter.

Now, Florida of course as a territory, could not have any independent policy.

And United States established all its policies for it and there was certainly no question of independent policy there so that as to Florida, as in the case of Louisiana, Mississippi and Alabama.

The question of whether at the time it became a State means just before or means upon statehood is quite immaterial because for many years before statehood, it was subject — plainly subject to the national policy of the United States.

This case of Pope against Blanton which Senator Holland mentioned, the case is of little significance because this Court directed it to be dismissed for the lack of juris — for lack of a jurisdictional amount.

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George S. Swarth:

However, in that case, the District Court did say that the Treaty with Spain fixed the boundaries — that is the 1819 Treaty by which we acquired Florida.

Fixed the boundaries of Florida as the East and West Florida’s together with adjacent islands, the act of Congress adopted that.

This act in effect described one of the boundaries as being the Gulf of Mexico and is by its adoption of the Spanish description.

Under international law, this means that the jurisdiction of the State extends one league into the gulf or three miles.

That was the view that the lower court took in Pope against Blanton as far as the claim of — based on the Spanish claims was concerned.

As I say, however, the case was dismissed later for lack of jurisdictional amount.

Now, we come to the question of whether Florida’s boundary as claimed in its Constitution of 1868, has been approved by Congress.

Charles E. Whittaker:

Before you read that, may I ask you Mr. Swarth.

(Inaudible) is concerned that the Act March 3, 1845 giving Floridas to (Inaudible) is contained the descriptions of its territories in place, the territories of East and West Florida which by the Treaty Amity, Settlement, and Limits was treated to the United States?

George S. Swarth:

Yes.

That is correct, Mr. Justice Whittaker.

Charles E. Whittaker:

As I understand that Treaty given there — there was embraced “the adjacent islands dependent on said province.”

George S. Swarth:

Yes.

Charles E. Whittaker:

So something more was embraced in that Treaty than just mainland.

George S. Swarth:

Oh, yes, indeed.

Charles E. Whittaker:

Then did the — Florida then did consist of something more than named as it was originally admitted to the Union.

George S. Swarth:

Yes, it did.

It consisted of mainland and islands and by virtue of general international laws applied by the United States, a three-mile belt around the mainland and the three-mile belt around the islands.

Charles E. Whittaker:

Then is it your understanding or do you — you argue, I suppose now that the 1868 Constitution expanded, did it, the Florida territory?

George S. Swarth:

It attempted to do so certainly.

We don’t think it succeeded.

Felix Frankfurter:

Well then, no antecedent to that expansion as you call it, except what was written by the Constitution made as a part.

Did they — that this is an act of creation on their part —

George S. Swarth:

So far —

Felix Frankfurter:

— as Floridas — any claim by Floridas (Inaudible).

George S. Swarth:

So far as I know, this was an innovation by the constitution writers of Florida.

Perhaps they were looking at the Treaty of Guadalupe Hidalgo or the President of the Republic of Texas, I don’t know.

It’s an — we don’t have any record of what they were looking at.

Potter Stewart:

There were those two — two prior, I think aborted attempts at forming Florida Constitution just prior to this constitution, weren’t they?

George S. Swarth:

Yes, they were —

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Potter Stewart:

There was that much history.

George S. Swarth:

Yes.

They were practically simultaneous.

Potter Stewart:

Each of which expanded the prior values of Florida.

They were all purported to —

George S. Swarth:

I believe one them related only to islands within the stated distance.

Yes.

At that time, Florida was — but I was taking that episode as a whole.

I think as far as I know, there was no background for it, it — it is apparent historically.

Well, there was a prior agreed claim, wasn’t there, that simply wasn’t tied to islands.

George S. Swarth:

I believe there was, Mr. Justice Harlan.

Charles E. Whittaker:

One more question if I may to this.

Does your view with respect to Florida’s Republic in view of the islands dependent upon the said province, involve a marginal sea of three miles surrounding each island?

George S. Swarth:

Yes it does, Mr. Justice Whittaker.

Not by virtue of any terms of the description but by virtue of a general principle of international law as applied by the United States.

But that is an incident which follows automatically on American possession of land bordering on the sea.

Charles E. Whittaker:

Does the three-league adoption by the 1868 Constitution expand Florida’s territory or may attempt to?

George S. Swarth:

Yes, I think it did.

I think it attempted to go beyond what international law gives and to take something more out of the ocean which belongs to all nations.

Charles E. Whittaker:

(Inaudible) on the physical examination and survey.

George S. Swarth:

Well, I will attempt to (Inaudible) through and apply the Florida description.

If it means three leagues from the mainland, it would of course be conceivable if there would be so many islands with three-mile marginal belt, if there’d be no difference but that is not the fact however.

There are in fact parts of the Florida Coast, the Gulf Coast where there are no — not a substantial number of islands at a distance of three leagues or approaching it.

There are areas where the change in description would have made a very great difference, that very substantial areas, I think along most of the coast, it would make a substantial difference in fact.

Hugo L. Black:

And do you think that in this view of the Reconstruction Act which require the States to admit constitutions for examination and approval.

And bear in mind as after they did, someone will submit it in the boundary which you say may have increased the boundary that it had and also assuming the validity of the Submerged Lands Act which provides that if Congress has approved a boundary beyond three miles.

What is — how do you answer the argument that these States shall have the extension of boundaries approved, assuming that — that there’s no constitutional violation in either the Submerged Lands Act or Reconstruction Act.

George S. Swarth:

Well, that is precisely what I wanted to discuss in the remainder of my argument of — we think that the Reconstruction Act —

Hugo L. Black:

Do you attack the constitutionality if either one?

George S. Swarth:

No, we do not, Mr. Justice Black.

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Hugo L. Black:

Of course, you know there were very stronger text made on the constitutionality of those Acts on the basis that the States had never been out of the Union.

George S. Swarth:

Well —

Hugo L. Black:

You do not attack — you do not attack the —

George S. Swarth:

We agree —

Hugo L. Black:

— the right of Congress to require a new constitution.

Require its complete approval by Congress as — as a valid action of Congress.

You do not attack its constitution.

George S. Swarth:

I don’t think that the constitutional validity of that is an issue now or could be.

The question is whether Congress did approve or whether it required something of the States that it couldn’t have required or shouldn’t have required, it seems to me not relevant to the question of what Congress did.

Hugo L. Black:

When?

With which time?

George S. Swarth:

In 1868.

Hugo L. Black:

But the act, I don’t know why, I am in the dark to that.

But the act specifically require, there was an act which specifically required them to submit a constitution for approval.

George S. Swarth:

That is true.

Hugo L. Black:

They specifically submitted the constitutions for approval.

George S. Swarth:

Yes.

Hugo L. Black:

Among the other things that were — were in those constitution were the description of the boundaries of the States.

George S. Swarth:

Yes.

Hugo L. Black:

Why wasn’t — why wasn’t that an approval by Congress.

George S. Swarth:

Because the chain of events stopped right there, Congress didn’t approved.

Congress simply said —

Hugo L. Black:

It didn’t approve the constitution?

George S. Swarth:

That’s our position, Mr. Justice Black.

What Congress said is, “These constitutions are Republican and Senators and Representatives may return to Congress,” and that is all that Congress said.

Charles E. Whittaker:

(Inaudible)

George S. Swarth:

No.

It did not, Mr. Justice Whittaker.

Charles E. Whittaker:

And the States were (Inaudible) to representation in the Congress.

George S. Swarth:

Yes, they were.

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Charles E. Whittaker:

By default or how, by non action?

George S. Swarth:

No.

By a specific declaration being enacted, That’s not Senators and Representative, maybe received in Congress.

Charles E. Whittaker:

But as a predicate to the right of the States to do so, they were required to submit new constitutions.

George S. Swarth:

Yes they were.

Charles E. Whittaker:

And they were required to be approved by Congress.

George S. Swarth:

Not quite.

The statement in the first act was that if they submit new constitutions and if they are approved by Congress, then the Congress will admit Senators and Representatives.

It did not actually say that that was the only condition on which Congress would approve them and this is more than a quibble.

Hugo L. Black:

That was one of the bill, wasn’t it —

George S. Swarth:

It’s said if —

Hugo L. Black:

— in the Act?

George S. Swarth:

— it said if that was done, Congress would admit that they’re Senators and Representatives.

It did not say Congress would not admit them otherwise.

And that is a little more than a quibble because that Act of March 2, 1867 had set down a requirement as to the number of voters who must approve State constitutions.

They require that a majority of the registered voters vote in an election which approved them.

And that was one of the conditions laid down in the Act of 18 — of March 2, 1867 along with this requirement of approval by Congress and so on.

And yet in the case of Alabama, a majority of the voters did not vote in the election so, the according to the terms of 1867 Act, the Constitution was not properly adopted.

Felix Frankfurter:

But Congress specifically, in the Act of 1968, took care of that by saying that was adopted by large majority of the votes cast at the election.

George S. Swarth:

Yes.

But that was not that the Act of 1967 had required.

Felix Frankfurter:

But the State had the right to modify its requirement and qualify the condition.

George S. Swarth:

Precisely.

Felix Frankfurter:

If I make an offer to you and you can’t meet it fully, but I can say very well you met it sufficiently and I accept it.

George S. Swarth:

That’s precisely my point, Mr. Justice Frankfurter.

We think that if Congress ever did intend to impose approval, a blanket approval of the Constitution as a condition of admission that — we don’t think it did and I want to come on that in a minute.

But if it did, we think that was abandoned by —

Felix Frankfurter:

I think if they — if they specifically abandon one of their requirements and say nothing about others.

I now use your expressio unius, I don’t think much of that is a guiding consideration deciding cases but I’ll take it for your purpose.

If they specifically qualify a limitation in their 1967 Act, I would — I think I can fairly say they didn’t qualify anything else.

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Felix Frankfurter:

And when they set examinations and approval presumably, they meant to examine in order to approve a discipline.

George S. Swarth:

Well, if I may then I would like to get into the history of the Act of March 2, 1867, which first laid down that requirement and which I think shows that it did not mean a complete comprehensive approval in every aspect of the constitution.

We think that —

Charles E. Whittaker:

(Inaudible) only if the State present the transportation and if it’s approved, then they may — their representatives maybe admitted?

Now will you then (Inaudible) from the words they used for the so.

George S. Swarth:

I think my first answer to that, Mr. Justice Whittaker, is that the — the statute that we are concerned with is the statute of 1868 and it says no word of approval at all.

The State of Florida is trying to read into that statute an approval that was mentioned in the Act of 1867.

In other words, they are trying to go behind the language of the Act of 1868 to find something which on its face it does not at all express.

Hugo L. Black:

They’re using language of this Act of 1968 there before you concede that it did not approve.

George S. Swarth:

Yes, I do, Mr. Justice Black.

Hugo L. Black:

It is the last approval, what page is that in the statute?

George S. Swarth:

That is 15 statutes at large, page 73.

Where is it?

George S. Swarth:

At page 331 in the Government’s large brief.

Now, that Act said — well, if I may, I’d like to — well, I think the language of that Act plainly on its face does not include approval whereas the people of North Carolina and South Carolina and so on have framed constitutions of state government which are Republican.

Felix Frankfurter:

Well, I think you ought not to skip what you’re skipping.

George S. Swarth:

I am sorry Mr. Justice Frankfurter, I’ll be glad to read the whole thing.

Felix Frankfurter:

In pursuance of the provisions of an act.

George S. Swarth:

In pursuance of provisions of an act entitled an act for the more efficient government of the rebel states.

Felix Frankfurter:

And from — and for me, that incorporate that from 1867.

George S. Swarth:

As to what the States did.

The States in pursuance of that Act have adopted constitutions, yes.

Felix Frankfurter:

Yes, but the Act of 1867 wasn’t organic and important as you’ve indicated and everybody else does, a terrifically important piece of legislation there is to this country.

George S. Swarth:

Yes.

Felix Frankfurter:

And you can’t, and when the — when the second Act refers to prior Act, the prior Act can’t be read out of existence, instead we must only look at the words of the second Act which relates to and is in response to the prior Act.

George S. Swarth:

I quite agree.

Felix Frankfurter:

And therefore the two will work together.

George S. Swarth:

I quite agree.

But if in construing the Act of 1868, if we are going to look back to the Act 1867 to find what the Act of 1868 meant, I think also, we’re entitled to look at to the debates to see what the Act of 1867 was.

Felix Frankfurter:

All depends who does the debating.

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Felix Frankfurter:

This business of picking everything out of anything that’s said on the floor of either of House, it seems to me a very dangerous way with which to deal with legislation.

If some authoritative statesman, somebody who had charge of the — of the Act of 1868 say that we’re only concerned with whether there is a Republic form of government, anybody.

George S. Swarth:

The Act of 1868.

Congressman Stevens who was Chairman of the Committee in the House said, “We have looked at these constitutions, we have pronounced them Republican in form and all we propose to require is that they shall remain so forever, subject to this requirement, we are willing to admit them into the Union.

All we propose to require is that they remain Republican in form.”

Now, I think that is very significant language and it comes from the Chairman of the Committee as showing what Congress was thinking about.

This goes back to — prior to the Act of 1867.

The States — the ten States remaining, Tennessee came in early but the others had submitted constitutions which were somewhat modified by — in one way or another.

They hoped that that would meet with the approval of Congress.

And those constitutions were submitted to Congress and they were rejected, the joint committee on reconstruction presented their report which said, “These constitutions are unacceptable for three reasons.

They were not properly adopted, they are not Republican — the governments are not Republican in form, and the governments are not loyal to the Union.”

And they —

Felix Frankfurter:

This contradicts what Thaddeus Stevens said then, even said then, didn’t it, certainly.

If you say all they were concerned with was whether it’s a Republican form of government and they were rejected or some of them were rejected because they weren’t properly adopted, the case asserts more things than a Republic form of government.

George S. Swarth:

That was with reference to these prior constitutions.

Felix Frankfurter:

Well, I understand that but evidently, Congress was also thinking about those.

George S. Swarth:

Yes, I think that is true.

Felix Frankfurter:

So, then Thaddeus Stevens doesn’t confine or define the limits of what was implied in their re-representation of it.

George S. Swarth:

I think the question of due adoption is a matter of definition of the Constitution.

It isn’t the constitution if it isn’t duly adopted.

It — the — the others were documents that were brought to Congress that a group of people had drafted.

And to call them constitutions that they were constitutions in form.

I don’t think that they could be properly be called constitutions.

Felix Frankfurter:

Well, that would be that the reconstruction controversy was whether these bodies were really legal bodies or not.

George S. Swarth:

That is true.

Felix Frankfurter:

And we can’t sit here and say, well, it wasn’t a constitution at all therefore, you rejected it.

Evidently, I don’t know how and what you tell me but they gave three grounds, one of which was procedural inadequacy of adoption.

George S. Swarth:

Yes.

And as the result then, an Act of the Act of March 2, 1867 which laid down the procedures to be followed.

How the conventions were to be elected, how they were to be held, how the constitutions were to be ratified.

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George S. Swarth:

Now, all that was implicit in the statement pursuant to the Act of 1867.

Felix Frankfurter:

Yes, and — and there was — there was non-compliance as you say with the majority votes and Congress had specifically wager, didn’t it?

George S. Swarth:

Yes, it did.

Felix Frankfurter:

And even that isn’t a question of Republican form of government, of course to our great (Inaudible) I think it was part of the voting sometimes around in this country less than the majority of those entitled to vote.

George S. Swarth:

That — when not to the question of whether the form of the government adopted by the constitution was Republican but whether the —

Felix Frankfurter:

No, but that is — my point is that apparently, that wasn’t the only thing Congress was concerned with.

We call — it specifically said, “We adopt this, we recognize the States or a written representation,” although they not — did not comply with the specific requirements and instead of shutting their eyes, they specifically dealt with it.

George S. Swarth:

Well, I think that is true that Representative Stevens was —

Felix Frankfurter:

Overstating it.

George S. Swarth:

— overstating it to that extent.

They were concerned with whether they were duly adopted, I think that was a necessary concern.

Felix Frankfurter:

Well, why anymore necessary than claiming the boundaries that they didn’t have, why is that anymore?

It seems to me for a State who claim what is probably beyond legal authority, according to your view, is no more or no less important than to have a constitution adopted by a meager vote.

George S. Swarth:

That wasn’t the problem that was bothering Congress at this time.

This was not an admission of new States.

Felix Frankfurter:

I understand that.

George S. Swarth:

These were existing States and as was pointed out in the debates, it was said, Congressman Bingham said, “Every gentleman knows that you must, under this bill, recognize the boundaries of these States as originally fixed by the sovereignty of this Union and if they stand as they were to this day.

Felix Frankfurter:

But — but I also been taking judicial notice that the most frequent controversy in the American civil life among the States is the boundary controversy.

George S. Swarth:

That is quite true but I think Congress felt that this was no time to be getting into any questions other than the very crucial questions of reconstruction.

The Union here was in a — an extremely difficult situation.

Here were ten States without adequate government of their own, without representation in Congress, it was a thoroughly unsatisfactory —

Felix Frankfurter:

That is true of the earlier constitutions, isn’t it?

But what was (Inaudible) and the constitutions that were rejected earlier.

George S. Swarth:

Yes.

Yes, it was.

Indeed.

Felix Frankfurter:

Its unsatisfactory condition was a rather new one.

George S. Swarth:

No.

Felix Frankfurter:

Again with (Inaudible).

George S. Swarth:

It did.

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George S. Swarth:

But Congress was anxious to terminate it as rapidly as possible and —

Hugo L. Black:

Terminate what?

George S. Swarth:

Terminate the situation to get the Southern States back to representation in Congress.

Hugo L. Black:

Some were and some were not.

George S. Swarth:

I think the debates reflect that Congress as a whole was —

Hugo L. Black:

I understood that the majority to pass this bill accept the views that the States were not States anymore, they were out.

They’ve been blotted out and they can only become States by being admitted to the Union on terms which Congress fixed.

President Johnson vetoed, refusing to go on that ground I understood you.

They did reply that there’d be, write new constitution as in order to be a State in Steven’s group and that they’d be approved by the Congress.

George S. Swarth:

They were —

Hugo L. Black:

That was my understanding of the history about that.

George S. Swarth:

I certainly debate —

Hugo L. Black:

Where —

George S. Swarth:

— to your knowledge of that subject.

Hugo L. Black:

— whether that might be — it maybe that I have read the wrong history but that’s what I understood [Laughter] — what I understood to be the history of the — of the reconstruction Congress and the purposes of those who required the States.

It had been the States to submit themselves to Congress before they — it was agreed by the Congress that they would.

George S. Swarth:

It certainly is true, they were required to submit new constitutions before their Senators —

Hugo L. Black:

For a submission, examination and approvals.

George S. Swarth:

Yes.

But I believe that a reading of the whole debates will show that that word approval was used by everybody as meaning approval with respect to this question, “Do they establish loyal Republican governments?”

Felix Frankfurter:

Well, they were preoccupied with but it doesn’t mean that the others had to be that the other provisions would have been deleted or everything else is in different —

George S. Swarth:

I —

Felix Frankfurter:

— as the men in Congress.

George S. Swarth:

I think the debate show —

Felix Frankfurter:

That they were indifferent to everything else.

George S. Swarth:

That they were indifferent to everything else when other questions were raised time after time, it was said that does not concern us, thus that —

William J. Brennan, Jr.:

That concerned about (Inaudible)

George S. Swarth:

I beg your pardon.

William J. Brennan, Jr.:

In some instances, they 1were concerned with the salaries to be paid, paid opposite, were they not?

George S. Swarth:

Yes.

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George S. Swarth:

That point was raised.

Congress did not seem much impressed by it but the man who raised it regarded that as going to the question of whether the Government is Republican.

He felt —

William J. Brennan, Jr.:

Who raised —

Felix Frankfurter:

You mean the silence of it determined whether a State is Republican?

Hugo L. Black:

Who raised it?

Felix Frankfurter:

(Inaudible)

Hugo L. Black:

Who raised that?

George S. Swarth:

I’m sorry, Mr. Justice Black.

Hugo L. Black:

I have —

George S. Swarth:

I cannot —

Hugo L. Black:

There were two groups fighting very hard at that time, and I think you would have found if you’ve read this history of that time.

One of which took the positions and including under Johnson, took the position that the States have never been out of the Union they were still in the Union when time of their representation.

The others took the view that they forfeited their membership in the Union, were not in it and required them to come in as though they were new States in entirely.

I think that was the — the line of debate at that time which may or may not affect this but it causes me to pause in connection with your argument as to what they meant by examination and approval of the constitution.

George S. Swarth:

Well, it’s true a great many people took the position of the States were out of the Union and had to be readmitted.

But I do not understand that that was the view that prevailed, and certainly it’s not the view that this Court has taken.

Felix Frankfurter:

No.

That — I am going to ask you.

Do you think Thaddeus Stevens would have written what the Chief Justice Chase later wrote, it’s an indestructible Union, indestructible State?

Do you think he would have in the light of all we know about his views.

George S. Swarth:

I don’t understand that he thought the States had been out of the Union.

Hugo L. Black:

Stevens, Thaddeus Stevens?

George S. Swarth:

I may be in error on that.

Felix Frankfurter:

It went out — it went out beyond the control of the — of the remaining so called union States.

The Union could do what they wanted to please.

They could send in Governors (Inaudible) and keep them under subjection as long as that part of Congress thought would bring them to appropriate (Inaudible) that is correct, isn’t it?

George S. Swarth:

Yes.

Felix Frankfurter:

Well, they weren’t — to that extent, they weren’t out of control of the — or sovereignty, but they were out as in the sanction which the Chief Justice in Texas against White said they were an indestructible States and had been, it’s never been out.

Do you think Thaddeus Stevens thought they were never out.

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Felix Frankfurter:

That States with all the rights of the constitution gives the various members of the Union.

George S. Swarth:

Oh, well, now that’s a different question.

Felix Frankfurter:

Well, that’s what we mean by States.

We don’t mean a piece of territory subject to a central government control.

We mean a political — having the political rights of States.

That’s what we mean by States.

George S. Swarth:

Well, certainly as this Court held, some of their rights had fallen into or some of their organization had fallen into advance but the Court said that they were States within the Union and that is I —

Felix Frankfurter:

The court did that I know.

George S. Swarth:

Yes.

Hugo L. Black:

But you are not attacking the law on the ground of this question — on the ground that the Act is unconstitutional on the basis of the State (Inaudible).

George S. Swarth:

Oh, no.

No, we do not — we do not claim that at all.

Felix Frankfurter:

Do you agree that conditions could have been imposed by Congress for the re-exercise — for the re-exercise of the right they had in 1860 or 1869.

What do you say that the condition, the claims or conditions under which, they sought to get those functions as of all did not include anything they may have said in their submission of a constitution within the boundaries, that’s your position.

George S. Swarth:

Yes.

That it did not pertain, that Congress was not concerned with looking at or passing on in any way any question except whether the constitutions were Republican and the governments were loyal.

On this question of salaries which was raised by a Mr. Payne of Wisconsin, Mr. Justice Black.

It was thought to relate to Republicanism in this.

The Governor had excessive, that what were considered by him, excessive appointive powers of officers to salaries he felt were excessive so that the — his feeling was the Government was establishing an oligarchy under the control of the Governor of bleeding the State with this excessive salaries for a few chosen people which he felt was not a Republican situation.

However, Congress brushed that aside.

This is not — really being of concern to them.

The Act of 1872 (Inaudible)

George S. Swarth:

I believe that is —

(Inaudible) as Justice Whittaker given, 292 is — you got something there (Inaudible)

William J. Brennan, Jr.:

It’s March 2nd.

George S. Swarth:

Yes.

Page 292 yes.

William J. Brennan, Jr.:

Well that’s the Act of March 23rd.

George S. Swarth:

Oh, I beg your pardon.

William J. Brennan, Jr.:

Where is the Act of March 2nd?

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George S. Swarth:

On page 285.

William J. Brennan, Jr.:

Thank you.

George S. Swarth:

Section 5 is the relevant section and it was introduced by a Senate amendment.

William J. Brennan, Jr.:

Yes.

George S. Swarth:

It was in the Act that was originally drafted.

Hugo L. Black:

Do you know who — do you happen to know who (Inaudible)?

George S. Swarth:

Yes, I — can tell you in a moment, Mr. Justice Black.

It was offered by Senator Johnson of Maryland and was amended by Senator Sherman of Ohio.

There was never any discussion of anything in any constitution that was not thought by the person doing the discussing to be relevant to the question of whether the constitution was Republican or the government loyal or the constitution duly adopted.

They never ranged beyond what they conceived to be within that scope and whenever other subjects were mentioned, they were immediately brushed to side.

We are not concerned with that.

That doesn’t go to whether it’s Republican and that — that ended it.

Could I ask you a question?

Assuming we had no legislative record at all, simply the Acts, the formal enactments, would you agree or what would your position be as to whether what is shown by those enactments would satisfy the requirement of approval in the SLA?

George S. Swarth:

No, Mr. Justice Harlan I think it would not.

You think it would not.

George S. Swarth:

No.

I think that —

I thought your position was that when you read the enactments in light of the legislative history, the doubt at least arose or it is clear that there was no approval.

George S. Swarth:

Well, I think that makes it much clearer.

I think the legislative history leaves no doubt at all.

What — what doubt do you — could you articulate what the doubt is?

Forget the legislative history.

What the — what premise of your doubt is looking at the enactments themselves?

George S. Swarth:

Well, first the Act on which the must rely is the Act of 1868 which does not say anything about approval.

But it incorporates that the phraseology in the Act of 1867.

George S. Swarth:

I don’t think that it quite incorporates.

It says the constitutions have been submitted pursuant to.

Pursuant to.

George S. Swarth:

That explains where they came from.

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George S. Swarth:

They don’t go on and say, “We are going to do here what we said there we are going to do.”

The Florida constitution was discussed I think more than any other.

It contains 186 Sections.

The discussion, the subjects discussed appear at the most in 22 of those Sections.

Now, that seems to me on its face to show something far short of a complete discussion of the constitution.

Felix Frankfurter:

Why do you say that?

The constitution of Oklahoma another record 1911 run about there, I think that also had a (Inaudible) as the New York Court of Appeals procedure.

And that was carefully scrutinized not only by the Congress, but the President of United States.

That has been rejected in order (Inaudible).

Why do you say Congress (Inaudible) document by the constitution which the important right to be (Inaudible) was involved, that they wouldn’t examine too many sections.

George S. Swarth:

No.

You misunderstood me Mr. Justice Frankfurter.

Felix Frankfurter:

Sorry.

George S. Swarth:

I don’t mean that there were too many Sections for them to examine.

Felix Frankfurter:

Or to prevail.

George S. Swarth:

No.

My point is that their discussion in fact covered only 22 Sections —

Felix Frankfurter:

What?

George S. Swarth:

— out of 186; I think that cannot be considered an exhausted examination of the constitution.

Felix Frankfurter:

Why do you say that?

Maybe that they found these objectionable and the others (Inaudible).

George S. Swarth:

Well, they never even said that?

Felix Frankfurter:

How they can find out which of the 22 that interested them unless they went through the whole.

George S. Swarth:

Well, now we had an answer to that.

When the constitution of our console was being discussed.

Representative (Inaudible) of Missouri who was the member of the committee said, I do not intend to discuss both the feature of the bill and question about, but only to answer the objection to the constitution based on the fact the gentlemen have not seen it and do not know its provisions.

I ask to have read the Bill of Rights, the article on subject on franchise and the article on the subject of education.

These embrace the main features of the constitution and are the provisions which have been specially attached by those who spoken against the bill.

Felix Frankfurter:

(Inaudible) is one the most distinguished members of the Congress in my lifetime.

That’s probably nine tenth of the bill that attacked by the Congress are not read by more than one tenth of its membership.

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George S. Swarth:

Perhaps it’s true.

I accept the Statement [Laughter], but I think this shows that Congress was —

Hugo L. Black:

In view of the fact that some or the other went over that time.

I see no reason why you shouldn’t have few minutes beyond this time if you need.

George S. Swarth:

Thank you Mr. Justice Black.

This shows that Congress was willing to proceed on the basis of their reading for the benefit of people who had not seen the constitution at all, a reading of these Sections which relate to franchise, education and the Bill of Rights.

That was all they were interested in here and we think that — that shows their attitude throughout this whole reconstruction episode.

William J. Brennan, Jr.:

May I ask Mr. Swarth (Inaudible) as I understand your argument that used the word expressly approved the constitution that save the State of Florida.

We still would not debate, am I correct, that this was an approval for the purposes of the SLA.

George S. Swarth:

Yes we would think so.

William J. Brennan, Jr.:

You think it would or it would not?

George S. Swarth:

We think it would not.

William J. Brennan, Jr.:

It would not in other words nothing short for the purpose of the SLA of — we approved the boundaries as delineated in the constitution of the State of Florida.

George S. Swarth:

No.

William J. Brennan, Jr.:

Do you think it would satisfy the principle?

George S. Swarth:

Well, that certainly would satisfy.

William J. Brennan, Jr.:

Yes, but what less than that?

George S. Swarth:

I think if they made it clear that they were approving for all purposes everything in the constitution that that would satisfy.

William J. Brennan, Jr.:

Well, if — if the (Inaudible) had read, we approved the constitution of the State of Florida, was that not been approved for?

George S. Swarth:

I think, in construing that you would have to see what they meant by approval.

Approval ordinarily is relevant to some particular criteria, for example, an appropriator approves a proof for a magazine, he doesn’t endorse the editorial policy.

Charles E. Whittaker:

When you approve (Inaudible)

George S. Swarth:

You may approve for different purposes, the banker may approve it to see if financial provisions are protected.

Someone else may approve it to see if something else is protected.

Charles E. Whittaker:

(Inaudible)

George S. Swarth:

Well, that’s the question.

I think you would have to have something to show whether Congress did intend as to be an unlimited approval and we think that the whole history of the reconstruction debate shows that they did not.

Charles E. Whittaker:

(Inaudible)

George S. Swarth:

No.

I agree that approval can be implied but take the cases of implied approval that they site.

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George S. Swarth:

Two of those were cases where Virginia has entered into context with the citizens of certain counties that new States that could be created.

Congress never expressly approved of those context but did admit the new States.

Felix Frankfurter:

What did they mean — what did Congress mean or what was the legislation.

They all get in trouble when I ask what Congress means that nobody can ever find that out, yet they probably express themselves.

What did they — what was meant by the Act of 1867 when it used the word approval.

We want you to submit something that we will examine line by line and by line by line approved.

Did they mean that?

George S. Swarth:

No.

I think we did not.

Felix Frankfurter:

What did they mean of approval in 1867 Act?

George S. Swarth:

Approval with respect to the criteria they were letting down in that Act.

Approval of the provisions going to make a Republican government, and I think that what we accorded from the debate show that that’s what they had in mind.

Do you have all they said in the discussion of the Submerged Land Act which is the one we really have to approve.

George S. Swarth:

Yes.

We get down to the question of how quick they expected this Court to be with reference to the approval of Act of — by Congress of boundary and was there anything said in the Congress was a report made or did it include anything about reconstruction approval of the Act.

Was that submitted to the Congress or they included that clause?

George S. Swarth:

There is no doubt that that precise question of was the question which led to the introduction of this provision in the Act, but it was a subject of much debate as to whether or not it did constitute an approval.

Now they were not — they submitted to us.

They said the question is when they submitted to us to determine whether or not there had been an approval of such a boundary.

They did — were we to do that of some basis or other than the — were we to be very strict to reach it and looking to see what was on approval by Congress.

George S. Swarth:

Yes.

(Inaudible) what are the standards or the standards that you suggest we should apply in determining whether or not the Act of Congress would say “the constitution has to examined and approved”, before — representatives come in and the representatives submit it as to (Inaudible).

They refer to the Act that has been followed pursuant to that Act.

What standard would you suggest we adopt to determine whether it come was in the — fairly and squarely within what Congress said because they have the power to do that, to admit.

George S. Swarth:

Oh yes.

Well, I think it’s simply a question of whether Congress had actually purposefully approved this boundary either in expressed terms or by implication of — I was about to say, the cases of implied approval that I speak of or the cases, for example, for the constitutional necessity would be implied.

This Virginia context for new states to be created was not approved by Congress.

The Congress did admit the new States and this Court said, Congress could not create new States, under the constitution could not create new States out of an existing State except pursuant to its agreement.

Therefore, we necessarily conclude the thing that was done couldn’t have been done if Congress had not approve the context.

We don’t have anything like that here.

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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Audio Transcription for Oral Argument – October 14, 1959 (Part 1) in United States v. Louisiana
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George S. Swarth:

Certainly, representative can be admitted to Congress while there are boundary disputes active boundary disputes are in effect.

Texas, for example, the Greer Country dispute was actually both before and after the Civil War and yet representative of Texas were saved in Congress throughout that time.

It doesn’t indicate any agreement with the State’s boundary claims.

(Inaudible) just as you might approach it or might reproach it you could have two individuals making a contract.

George S. Swarth:

I —

Why did you — as I get to the thrust of your argument, it seems to me that your basic approach here —

George S. Swarth:

Well, —

— does not recognize any difference between the covenants of the construction or whatever you want to call it.

I am looking at a matter of this broad suite with importance against what might be the sensible rules in case of two individuals contracting.

George S. Swarth:

I think that perhaps is correct of — Congress was well aware that there was a question, a very definite question, whether what happened in 1868 was or wasn’t an approval of the boundary.

Senator Holland, of course, urged to the Senate that the boundary had been approved and explained why he thought so.

Senator Anderson indicated very strongly his view that that was not an approval at all of the boundary, that it was nothing beyond the admission of Senators and Representatives.

Charles E. Whittaker:

Does that (Inaudible)?

George S. Swarth:

It was left to this Court.

Charles E. Whittaker:

And that’s here.

George S. Swarth:

Precisely Mr. Justice Whittaker.

Charles E. Whittaker:

(Inaudible) what Congress said should (Inaudible)

George S. Swarth:

I’d put it a little more sharply than that, an approval for such purpose as to approve the boundary, an approval of such scope.

Charles E. Whittaker:

Well, to me that’s confusing (Inaudible)

George S. Swarth:

Oh!

I think one can approve in a certain aspect for a specific purpose, in fact I think approval is more generally limited to certain aspects or certain purposes.

This question is not entirely a new one for this Court.

In the case Gunn against Barry, 15 Wallace, the question of the effect of this Act of 1868 was before the Court, and it was said there regarding the Georgia constitution, “though her constitution was sanctioned by Congress, this provision can in no sense, be considered an Act of that body.”

That’s the provision of charge of constitution.

“The sanction was only permissive as a part of the process of her rehabilitation and involved nothing affirmative or negative beyond that event.”

Hugo L. Black:

Well, let’s suppose that’s precisely correct, Congress come to (Inaudible) that you say it is and says that Congress heretofore approved the certain thing, then that should be recognized, that’s it’s about.

How — what you have read in that — the application among that Act, that (Inaudible)?

George S. Swarth:

Well, I think this shows that what Congress did in 1868 was not an approval.

It was merely a permission for Senator and Representative to return and nothing affirmative or negative beyond that event.

Hugo L. Black:

You agree — you would make that as a broad Statement that if just didn’t mean anything, didn’t mean any approval at all.

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
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George S. Swarth:

I think it meant simply that Senators and Representatives could return to Congress.

That’s all it said.

Hugo L. Black:

Because of — because of what?

George S. Swarth:

Because Congress had found the constitution to be republican.

Hugo L. Black:

Congress had, pursuant to an Act, which said that the constitution should be examined and approve by them, that said, you can come on and (Inaudible).

George S. Swarth:

Well then of course we get back to the question on what they meant in 1867 when they said approval.

We think they meant in effect determine that it was republican.

I think there is something in the Act of 1868 that shows a rather studied the avoidance of saying it was approved.

In that Act where they refer to the constitution requirements, they say the constitutions herein recognize, rather than, I think it would be the natural language hereby approved if they had intended an approval.

There is another —

Felix Frankfurter:

How does Gunn and Barry help you Mr. Swarth.

I just looked at it.

That simply says that merely because the provisions in the State constitution of Georgia allowed exemption, it couldn’t affect prior (Inaudible) this created, because that would involve (Inaudible) obligation of context.

How does that — I don’t —

George S. Swarth:

I don’t point the case for its holding Mr. Justice Frankfurter.

Felix Frankfurter:

Well I know, but you can’t just take words out of a case and find significance.

What they have said in this that — that this conflict (Inaudible) this provision gave authority so far the Congress of the United States is concerned, you can go ahead and do it.

It doesn’t mean prior existing rights were wiped out and it didn’t mean any new federal right created by it.

It simply said, we let you come back (Inaudible), we let you come back on these conditions, isn’t that all it means by approval?

I should pick the phrase sanction, shows that they put their stand of confirmation upon it.

George S. Swarth:

I think the confirmation as to the effect that it met the requirements of the Reconstruction Act of 1867.

Felix Frankfurter:

But the reconstruction Act as I read it of 1867 didn’t lay down certain criteria.

They have formulated conditions of — they said how a constitution should be adopted and then said, you bring it, we will examine it and approve it.

George S. Swarth:

It said the constitution which is republican and in conformity of the constitution of the United States and throughout the debates they consciously said that is all the concern here, is it republican or is it in conformity with the constitution.

William O. Douglas:

I — I thought in answer to Justice Frankfurter’s argument, you (Inaudible) attention of the Court to some of the cases involving provisions of the State constitutions that were so-called approved when they were challenged in the court.

You mentioned them in your brief.

George S. Swarth:

Well, Gunn against Barry was such a case Mr. Justice.

William O. Douglas:

You’re not — you’re not relying upon them in your argument here.

George S. Swarth:

Yes.

Yes indeed, we may not abandoning anything find in the brief.

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 14, 1959 (Part 2) in United States v. Louisiana

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Felix Frankfurter:

Gunn against Barry did not say the Congress didn’t approve it; Gunn against Barry dealt with the legal consequences of that approval.

William O. Douglas:

There was a language in there about the approval or disapproval, but to those — while those line of cases seem to help you, there are other line of cases that — in the Court that work against you, it seems to me, the boundary case where there had been boundary described in the constitutions that were admitted in the Union, where the court has said presumably the Congress in admitting the State —

George S. Swarth:

Yes.

William O. Douglas:

— approved the boundaries that were specified in the constitution.

George S. Swarth:

That’s in admitting a new State, yes.

I don’t think that that — the problems here were not the problems of admitting a new State, they were simply the problem of getting the Senators and Congressman back.

The State was already here, they are not concern of — of any other questions and whether they had to again establish an adequate government.

Have you read President Johnson’s veto?

George S. Swarth:

No.

I am afraid —

One of his ground cause that they have declined to accept the constitution of States to show they were wholly loyal and republican (Inaudible).

That was one of his grounds in veto and they overruled it.

George S. Swarth:

Well, I don’t feel that that shows that Congress was concerned with any other questions beyond that.

Hugo L. Black:

(Inaudible)

George S. Swarth:

That was simply —

Hugo L. Black:

(Inaudible) power that you can have that was similar —

George S. Swarth:

That wasn’t — disagreements between them and him as to whether the constitution submitted were loyal and republican.

Hugo L. Black:

(Inaudible)

George S. Swarth:

Well, I think the question here is what Congress actually did of what it could have done or invoke the (Inaudible)

Hugo L. Black:

Invoke (Inaudible)

George S. Swarth:

Yes sir.

Hugo L. Black:

(Inaudible) that this is a very important case and if there is anything particular that any of you wish to call our attention to in a short brief or anything it would be all right on either sides.

We will file a (Inaudible).

Hugo L. Black:

What is that?

We will file a (Inaudible).