State Lands Division, State of California, oil royalty data, yearly total, by fields— Continued

Mr. HAMMOND. The statement of the legislature which I introduced recognizes the seriousness of the matters brought out bv Mr. Howser and asks the Congress to define the shore limits of the United States. Mr. WALTER. The next witness will be Mr. Giles, the Land Commissioner of Texas.

STATEMENT OF HON. BASCOM GILES, COMMISSIONER OF GENERAL LAND OFFICE OF THE STATE OF TEXAS

Mr. GILES. I am passing out a statement that I would like to have printed in this hearing and then I would like to discuss the matter orally for a very few minutes, if you please.

Mr. WALTER. The paper will be made a part of the record at this point, without objection.

(The document referred to is as follows:)

MEMORANDUM BRIEF AND ARGUMENT SUBMITTED BY BASCOM GILES, COMMISSIONER OF GENERAL LAND OFFICE, THE STATE OF TEXAS

The people and the elected representatives of the State of Texas respectfully urge the approval by the first session of the Eighty-first Congress of H. R. 5991 now before this committee for consideration.

This memorandum brief and argument is submitted by the undersigned, the constitutional officer of the State of Texas charged with the management and administration of public lands of that State, in support of the aforesaid bill.

From the outset, over a decade ago, of the submerged-lands controversy provoked by the Federal Government, the undersigned has in each instance been actively identified with every responsible effort to resist Federal encroachmerts upon the traditional proprietary rights of the States. It is the purpose of this memorandum brief to spell out in plain fashion the position of the States in this controversy, with particular emphasis being devoted to the unusual Texas claim to her submerged land.

The proposition which is respectfully but firmly urged is that the United States does not own the title to such submerged lands within the boundaries of the State of Texas and is not entitled to possession of same.

THE GENERAL RULE OF LAW

The case of United States v. California (67 S. Ct. 1658), decided by the Supreme Court of the United States on June 23, 1947, overturned 52 Supreme Court decisions, 244 Federal and State court decisions, 49 Attorney General opinions, and 31 Department of Interior opinions by proclaiming the unique concept of the "paramount right" of the Federal Government to take natural resources based on the Government's "need" for those resources, even though it could not establish its title to these resources or the soil from whence they came. This need was held to transcend the right of a "mere property owner."

Prior to the decision in the California case, the Supreme Court had repeatedly held those submerged lands lying seaward a distance of 3 miles from low-water mark to be the property of the State. This was not a judicial determination predicated upon political expediency but was a principle of law that had become established even before the American Revolution.

As long as two centuries ago the realistic doctrine of ownership by the sovereign of the littoral sea was commonly asserted and applied (Van Bynkershoek, De Domino Maris (1703), translation in Classics of International Law, 1923, p. 44). Eventually the rule was refined so as to establish dominion of coastal waters at the range of the cannon, which at that time was roughly one marine league or three nautical miles, equal to four statute miles (Von Martens, Law of Nations, 165; Stockton's International Law, p. 126 et seq.; Fulton, the Sovereignty of the Sea (1911), p. 537). Even after the range of artillery was extended, the courts and international law writers continued to apply the three-nautical-mile rule. For example, in The Anna (165 Eng. Rep 809 (1805)), the court applied the common law of England and held the territorial limit seaward to be "about 3 miles from the shore," in plain recognition of the principles expressed by Lord Hale about 1667 in his De Jure Maris, reprinted in Moore, History and Law of the Foreshore and Sea Shore (1888), p. 370:

"The narrow sea adjoining to the coast of England is part of the wast and demesnes and dominions of the King of England, whether it lie within the body of any country or not."

Such a general rule of maritime law would undoubtedly be binding upon the Federal Government, inasmuch as the Supreme Court held in the case of Knickerbocker Ice Co. v. Stewart (253 U. S. 149) that

"The Constitution itself adopted and established, as the laws of the United States, approved rules of the general maritime law."

The same Court, in referring to the case of McCready v. Virginia (94 U. S. 391 (1876)), opinion by Mr. Chief Justice Waite, said:

"The principle had long been settled in this court that each State owns the beds of all tidewaters within its jurisdiction."

In Martin v. Waddell (16 Pet. 367, 410 (1842)), the Court concluded: "When the Revolution took place, the people of each State became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the General Government."

It is to be observed that the case of Martin v. Waddell was decided by the Supreme Court over 3 years before the annexation of Texas was accomplished. Moreover, in Shively v. Bowlby (152 U. S. 1, 14 (1894)), the Supreme Court stated:

66* * * upon the American Revolution, all the rights of the Crown and of Parliament vested in the several States, subject to the rights surrendered to the National Government by the Constitution of the United States."

The same right of title and the same ownership of submerged lands enjoyed by the Original Thirteen States of the Union have been held repeatedly by the Supreme Court of the United States to be vested in other States subsequently admitted into the Union. This precise point was directly presented in the case of Pollard v. Hagan (3 How. 212, 229, 11 L. Ed. 565 (1844)), in which the Supreme Court held:

"By the preceding course of reasoning we have arrived at these general conclusions: First, the shores of navigable waters and the soils under them were not granted by the Constitution to the United States but were reserved to the States, respectively; second, the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States."

It is significant that this important decision by the United States Supreme Court was handed down a year before the Texas annexation. Upon entering the Union, certainly Texas could properly give credence to the continued applica

tion of this rule of State ownership as one both of property and of constitutional law.

Similarly, the case of Knight v. United Land Association (142 U. S. 161) has often been cited for the proposition that

"It is a settled rule of law in this Court that absolute property in and dominion and sovereignty over the soils under the tidewaters in the original States were reserved to the several States, and that the new States since admitted have the same rights, sovereignty, and jurisdiction in that behalf as the original States possess within their respective borders."

The Supreme Court of Texas has followed the rule of law announced by the Supreme Court (Galveston v. Menard (23 Tex. 349), State v. Bradford (121 Tex. 515)).

THE TEXAS CASE

It is the purpose of this brief to place particular emphasis upon the title to the submerged lands abutting upon the coast of the State of Texas, for the reason that the title to these lands is not only subject to the principles of fundamental law hereinabove stated but the title of the State of Texas is further determined by the manner in which the boundary of the State of Texas was established and by the reservation of all public lands in Texas at the time that State was admitted into the union.

Immediately after Texas won her independence and became a sovereign nation, the Republic of Texas, through its Congress, on December 19, 1836, passed an act to define the boundaries of the Republic. Among other things, this act of the Congress of the Republic of Texas provided as follows:

"Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled, That from and after the passage of this Act the civil and political jurisdiction of this Republic be, and is hereby, declared to extend to the following boundaries, to wit:

"Beginning at the mouth of the Sabine River and running west along the Gulf of Mexico three leagues from land to the mouth of the Rio Grande, thence up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude, thence along the boundary line as defined in the treaty between the United States and Spain, to the beginning; and that the President be, and is hereby, authorized and required to open a negotiation with the Government of the United States of America, so soon as in his opinion the public interest requires it, to ascertain and define the boundary line as agreed upon in said treaty" (1 Gammel's Law 1193; vol. 1, Sayles Early Laws of Texas, art. 257). [Emphasis added.]

This manifestation by the separate and independent Republic of Texas of her jurisdiction, sovereignty, and title to the lands underlying the Gulf of Mexico to a coterminous point 3 leagues from her shore was accepted by the nations of the world. Subsequently, formal treaties were entered into between the Republic of Texas and France in 1839, Holland in 1842, and three treaties with Great Britain in 1842. Moreover, on April 25, 1838, a convention was held between the Republic of Texas and the United States for the purpose of marking the boundaries as proclaimed by the Republic. The 3-league boundary proclaimed in the Republic's act of December 19, 1836, was never disputed.

Shortly after the Republic of Texas acquired its independence, negotiations were commenced in an attempt to annex the Republic of Texas to the Union. The annexation was sought to be accomplished by treaty, but the United States Senate refused to ratify it on June 8, 1844, by a vote of 35 to 16. Senator James P. Buchanan summarized the principal objections to the ratifications as follows: "It is objected that Texas does not own to the Rio Grande. But we could not expect her to proclaim to the world that the boundaries solemnly asserted by her were fictitious. We must receive her as she is or not at all. * * * Objection is made also to our assuming the debt of Texas. But we could not take her lands without so doing" (Congressional Globe, 28th Cong., 1st sess., p. 720). If the treaty had been ratified, the Republic of Texas would have ceded all of her public domain to the United States in return for the payment of the public debt of the Republic of Texas. This was the very reason the United States Senate rejected the treaty of annexation: The American Congress refused to assume the public debt of Texas and accept title to the public domain of the independent Republic in return therefor.

During the existence of the Republic of Texas, her congress had authorized the issuance of bonds amounting to many millions of dollars, the payment of which was secured by the revenues of Texas. These bonds were not only held

by citizens of the Republic of Texas but by citizens of other nations as well. An attempt was made by a citizen in England in 1853, before the Claims Commissioner of the United States, to hold the Government of the United States responsible for the payment of the Texas bonds which he held. In his opinion, Mr. Upham, the Claims Commissioner, said:

"The matter of the indebtedness of Texas was a distinct subject of argument by the terms of the Union. According to those terms, the vacant and unappropriated lands within the limits of Texas were to be retained by her and applied to the payment of the debts and liabilities of the Republic of Texas, and the residue of the land, after discharging these debts and liabilities, was to be disposed of as the State might direct, but in no event were the debts and liabilities to become a charge upon the Government of the United States (5 U. S. Stats. at Large 798).

"The lands of Texas were thus specifically set apart for the payment of the debts of Texas by agreement of the two governments, in addition to any separate pledge Texas had previously made of this class of property for the payment of her debts" (1 Wharton's Digest, 20-23).

The rejection of the treaty, however, did not end the annexation efforts. On the contrary, the House of Representatives by resolution requested the President to submit additional facts concerning the efforts to annex the Republic of Texas. President Tyler, in response thereto, tendered the report of his Secretary of State, Daniel Webster, which read in part as follows:

"The reciprocal obligations of the two governments in relation thereto are regulated and defined by the treaty between the United States and the United Mexican States of the 5th of April 1831, of which latter Republic Texas then formed a part. Soon after its recognition by the Government of the United States, the Texian government was apprized that our treaty with Mexico was still considered by us to be mutually binding upon the United States and Texas, and that government subsequently assented to it" (Executive Documents, vol. 1, H. D. No. 12). [Emphasis added.]

Perhaps the best indication of the importance which the Republic of Texas attached to the maintenance of her territorial integrity is shown by the contemporary documents prepared by various responsible officials who had firsthand knowledge of the annexation move. These records indicate that the Republic was not willing to surrender her independence in return for statehood until her boundaries as proclaimed on December 19, 1836, were completely established and agreed upon. For example:

On May 19, 1845, Charles H. Raymond wrote to Ebenezer Allen, Attorney General of Texas and Secretary of State ad interim, as follows:

"I had a parting interview today with the President and the Secretary of State. They were considerably elated by the recent news from Texas, and expressed great gratification at the favorable prospect of annexation, and assured me that nothing should be wanting on the part of the Executive toward insuring to Texas her just rights after she shall have become a member of this confederacy" (Texan Diplomatic Correspondence, vol. 11, p. 377).

A letter from the Honorable Volney E. Howard was read into the Congressional Record of the Thirty-first Congress, first session, to this effect:

"Texas was admitted into the Union with specified boundaries, subject only to the right of the United States to settle all questions of boundary which may arise with other governments. This was a naked power, coupled with no interest, which must be strictly construed. Under it the Texas boundary, with any foreign government, might have been settled. But, as the late treaty with Mexico removed the possibility of such a question with any other government, the power is at an end. Neither could the United States, thus acting as the trustee of Texas to settle the boundary with other governments, acquire of any government a right in opposition to the claim of Texas. To assert such a proposition is to affirm that the trustee may acquire the subject matter of the trust in opposition to the beneficiary, or that the judge or arbitrator may adjudge the subject of controversy to himself in opposition to the parties litigant. It is evident that whatever right the United States acquired under the treaty with Mexico to the country east of the Rio Grande was acquired as the trustee of Texas and inures to the benefit of that State."

The day before President Tyler died, he sent a letter of instructions to the chargé d affairs in Texas, Andrew J. Donelson, in which he stated:

"By whatever name the agents conducting the negotiations may be known, whether they be called commissioners, ministers, or by any other title, the compact

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agreed on by them in behalf of their respective governments would be a treaty, whether so called or designated by some other name. The very meaning of a treaty is a compact between independent states founded on negotiation."

On May 6, 1845, President Polk wrote to Commissioner Donelson, as follows: "We desire most anxiously that she [Texas] will accept the offer as made to her, and if she does she may rely upon our magnanimity and sense of justice toward her. We will act in a way that will satisfy her" (Tennessee Historical Magazine III (1917), p. 68).

Polk also advised Sam Houston on June 6, 1845, that Texas need have no apprehension in regard to the boundaries of the Republic because the United States would "not allow the Texan rights of territory to be sacrificed." Moreover, on June 15, 1845, Polk again wrote to Donelson:

"Of course, I would maintain the Texas title to the extent which she claims it to be."

Following this, the annexation of Texas was finally provided for by a joint resolution of the Congress of the United States approved on March 1, 1845, which reads in part as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State, to be called the State of Texas, with a republican form of government adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing Government, in order that the same may be admitted as one of the States of this Union.

"2. And be it further resolved, That the foregoing consent of Congress is given upon the following conditions, to wit:

"First, Said States to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other governments, and the Constitution thereof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action on or before the 1st day of January 1846. "Second, said State, when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports, and harbors, navy and navy yards, docks, magazines, and armaments, and all other means pertaining to the public defense belonging to the said Republic of Texas, shall retain all the public funds, debts, taxes, and dues of every kind which may belong to or be due and owing said Republic, and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue said lands, after discharging said debts and liabilities, to be disposed of as said State may direct, but in no event are said debts and liabilities to become a charge upon the Government of the United States. * * *"" [Emphasis ad ed.] (Reproduced in Journals and Debates, Texas Convention (1845), p. 9) (5 U. S. Stats. at Large 797, 9 U. S. Stats. at Large 108, 2 Gammel's Laws 1200.)

Immediately after becoming one of the States of the Union, the State of Texas promptly asserted jurisdiction over its public domain by joint resolution dated April 29, 1846 (vol. 2, Gammel's Laws, 1461; Hartley's Digest, art. 1634; Acts 1st leg., 1846, p. 155), which reads in part as follows:

"Be it resolved by the Legislature of the State of Texas, That the exclusive right to the jurisdiction over the soil included in limits of the late Republic of Texas was acquired by the valor of the people thereof and was by them vested in the government of the said Republic; that such exclusive right is now vested in and belongs to the State, excepting such jurisdiction as is vested in the United States, by the Constitution of the United States, by the joint resolution of annexation, subject to such regulations and control as the government thereof may deem expedient to adopt."

After the war of 1848, the Treaty of Guadalupe Hidalgo between Mexico and the United States provided that the beginning of the boundary line between the two Republics was placed at a point 3 leagues at sea from the mouth of the Rio Grande, and this boundary was reaffirmed in the Gadsden treaty, under which the Gadsden Purchase was accomplished.

In article 5 of the Treaty of Guadalupe Hidalgo, it is provided:

"The boundary line between the two Republics shall commence in the Gulf of Mexico, 3 leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch, emptying directly into the sea; from thence, up the middle of that river, following the deepest channel, where it has