tinctions which are certain to overcome the concept that "national interests, responsibilities, and therefore national rights, are paramount in waters lying to the seaward of the three-mile belt." (Id. at 1667; note 2 supra. Although the decision covers the entire 3mile belt, including resources of the ocean bed, the whole tenor of the reasoning relates to oil and other materials strategic in national defense. A distinction between such materials and sponges, oysters, or fish might be made. Cf. The Abby Dodge, 223 U. S. 186 (1912); Skiriotes v. Florida, 313 U. S. 69 (1941). Furthermore, the boundaries claimed by Florida extend beyond the limit of three nautical miles awarded the United States.)

Article I of the Constitution of the State of Florida, adopted in 1885, sets forth the boundaries as they exist today (Fla. Const. art I provides :)

The boundaries of the State of Florida shall be as follows: Commencing at the mouth of the river Perdido; from thence up the middle of said river to where it intersects the south boundary line of the State of Alabama, and the thirty-first degree of north latitude; thence due east to the Chattahooche River; thence down the middle of said river to its confluence with the Flint River; thence straight to the head of the St. Mary's River; thence down the middle of said river to the Atlantic Ocean; thence southeastwardly along the coast to the edge of the Gulf Stream; thense southwestwardly along the edge of the Gulf Stream and Florida Reefs to, and including the Tortugas Islands; thence northeastwardly to a point three leagues from the mainland; thence northwestwardly three leagues from the land to a point west of the mouth of the Perdido River; thence to the place of beginning.—

or at least as they existed until the California decision. The tidal shore line of Florida totals 1,221 miles, of which 714 outline the mainland and 507 surrounding islands. (C. Wythe Coow, Ph. D., of the United States Geological Survey, a digest by permission from Florida Geological Survey, Bulletin 17, in Allen Morris, the Florida Handbook, 1947, 1948, 122.)

These figures do not take into account the numerous indentations, inlets, cuts, bayous, elbows, necks, sounds, bays, and estuaries.

The management of the tidelands is vested in the trustee of the internal improvement fund of the State of Florida, composed of the Governor, comptroller, attorney general, treasurer, and secretary of agriculture (Fla. Stat. 1941, c. 253). Since approximately 1853 they have administered the submerged lands of Florida, both inland and

coastal.

These lands have been leased for the removal of oyster and coquina shell, marl, lime rock, ilmenite, zircon, salt, seaweed, logs, precious metals, and buried treasure. They are used for public ports, docks, seaplane runways, oyster farms, and a host of other useful and productive purposes with which the State officials have long been familiar.

In recent years they have been leased for oil exploration, the legality of which action has been upheld by the Supreme Court of Florida. (Watson v. Holland, 155 Fla. 342, 20 So. 2d 388 (1944), application for extension of time within which to file cert. denied, 325 U. S. 839 (1944). The Gulf area of Florida is now covered by oil leases from the trustees of the internal improvement fund to Gulf Refining Co., Magnolia Petroleum Co., and Coastal Petroleum Co.)

Millions of dollars have been invested in projects along the coast line, and still further millions have been expended in filling in land and artificially extending the low-water mark outward into the sea.

On this land costly buildings and facilities have been constructed. The title to these areas derived from the trustees of the internal improvement fund over many years under the belief that the underwater lands belonged to the State of Florida. (Holland v. Fort Pierce Financing & Const. Co., 157 Fla. 649, 27 So. 2d 76 (1946); accord., United States v. Mission Rock Co., 189 U. S. 391 (1903); see Brickell v. Trammell, 77 Fla. 544, 559-563, 82 So. 221, 226-227 (1919).)

That the reasons advanced and conclusion reached in the majority opinion would evoke strong dissents was to be expected. Mr. Justice Reed, dissenting, takes the view that the marginal belt is owned by California, which was admitted on an equal footing with the Original Thirteen States in all respects. As regards their ownership he states. (United States v. California, 67 Sup. Ct. 1658, 1671 (1947).):

The original States were sovereignties in their own right, possessed of so much of the land underneath the adjacent seas as was generally recognized to be under their jurisdiction. The scope of their jurisdiction and the boundaries of their lands were coterminous. Any part of that territory which had not passed from their ownership by existing valid grants were (sic) and remained public lands of the respective States.

The majority opinion attempts to answer this merely by showing that there was dispute among maritime nations at that time with regard to the precise extent of the marginal belt, and also as to the variations, both in distances claimed and methods of measurement employed, occasioned by differences of activity within the belt, such as fishing, maintenance of neutrality, and control of navigation.

This is a far cry, however, from the wholly unsupported assumption that maritime States, including as a matter of internal law the 13 sovereign States that later created the Federal Government, claimed no marginal belt whatever. Such a proposition can find no support, either in law or in history. (Jessup, the Law of Territorial Waters and Maritime Jurisdiction, xxxiv, 3, 7, 65 (1927); 1 Oppenheim, International Law, 333-341, 452-453 (3d ed. Roxburgh, 1920); Hall, International Law, 154-155 (7th ed., Higgins, 1917); Bynkershoek De Dominio Maris Dissertatio, c. 2 (2d ed. 1744); 1 Hackworth, Digest of International Law, 612, 623-642, 694 (1940); Fraser, the Extent and Delimitation of Territorial, 11 Corn, L. O. 455 (1926); Manchester v. Massachusetts, 139 U. S. 240, 257-258 (1891).)

Finally, the fundamental principle of our Constitution law that powers and rights not expressly granted to the Federal Government are reserved to the sovereign States was completely disregarded. (United States Constitution, amend. X provides:)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Even assuming that the claims of the Thirteen Original States were nebulous, at least whatever they claimed in the way of ownership was never granted to the Federal Government. Conceding that support for State ownership of territorial waters could be stronger than it is, the fact remains that there is no support whatever for Federal ownership as against the States, unless, as will appear further on, there be some practical argument inducing Federal seizure.

Mr. Justice Frankfurter, in a dissent as searching as it is brief, maintains that Congress rather than the Supreme Court is the appropriate agency for the determination of issues of the type involved

(United States v. California, 67 Sup. Ct. 1658, 1671 (1947)) and that no threat to proper performance of the functions of the Federal Government, a point stressed in the majority opinion, has been in any manner indicated. The following passage in his opinion stands unanswered (id. at 1670):

To speak of "dominion" carries precisely those overtones in the law which relate to property and not to political authority. Dominion, from the Roman concept dominium, was concerned with property and ownership, as against imperium, which related to political sovereignty. One may choose to say, for example, that the United States has "national dominion" over navigable streams. But the power to regulate commerce over these streams, in its continued exercise, do not change the imperium of the United States into dominium over the land below the waters. Of course the United States has "paramount rights" in the sea belt of California-the rights that are implied by the power to regulate interstate and foreign commerce, the power of condemnation, the treaty-making power, the war power. We have not now before us the validity of the exercise of any of these paramount rights. Rights of ownership are here asserted-and rights of ownership are something else.

He accordingly advised that the bill be dismissed without prejudice (id. at 1671).

Many lawyers have pondered the omission from the majority opinion not only of all reference to fee simple (Sir Edward Coke states that "a man cannot have a more large or greater estate of inheritance than fee simple." Co. Litt. *18a; United States v. Hyde, 132 Fed. 545, 550 (1904); Woodberry v. Matherson, 19 Fla. 778, 785 (1883)), but also of an affirmative statement that the tidelands are owned by the United States. Certainly, in dealing with concepts so fundamental, these omissions can hardly be due to mere inadvertence. Analysis indicates strongly that they were occasioned by lock of logical, legal, or historical support for the position taken, and by the normal urge to attempt explanation of the decision without openly destroying the established law.

The Skiriotes case (Skiriotes v. Florida, 313 U. S. 69 (1941)), on the basis of decision adopted by the Supreme Court, has little if any bearing on the matter, since the decision itself did nothing less, and nothing more, than confirm the power of Florida to regulate the conduct of its own citizens on the high seas with respect to matters in which it has a legitimate interest and in which there is no conflict with Federal law. The opinion, however, refers to fishing for sponges "within the territorial waters of Florida" (id. at 75) in connection with the exercise of State police power; and it is common knowledge that the Florida sponge beds are located in the Gulf of Mexico rather than in bays. The obvious implication is that Florida has territorial waters along its coast.

Manchester v. Massachusetts (139 U. S. 240 (1891)), sustained the right of the State to control menhaden fisheries in a bay at the mouth of which the headlands were separated by less than two marine leagues, or six modern nautical miles. The violation was committed by a citizen of Rhode Island. The right of Congress to control these fisheries was expressly not considered, as no relevant Federal statute then existed. Similarly, Louisiana v. Mississippi (202 U. S. 1 (1906)), established the boundary between the two litigating States in inland waters only. State ownership of the beds of all tidewaters within State jurisdiction was unequivocally pronounced in McCready v. Virginia (94 U. S. 391 (1876)) and was necessary to the decision that Virginia could fine a Maryland citizen for planting oysters in Ware

River where the tide ebbed and flowed, and where Virginians alone were allowed by statute to plant. Coastal waters, however, were not involved in the facts of the case.

The decision in The Abby Dodge (223 U. S. 166 (1912)), however, rests squarely on the principle that State territorial waters, geographically speaking, belong to the State as a matter of law. The waters involved were coastal, and not inland. Appellant had been fined for violating a Federal statute forbidding the landing in the United States of sponges taken in certain prescribed manners at prohibited times in the Gulf of Mexico and the Straits of Florida. Since the libel did not specify whether the sponges had been taken in Florida territory or on the high seas, the decree below was reversed with leave to amend the libel so as to show, if such were the facts, a taking on the high seas and therefore in foreign commerce and subject to Federal jurisdiction. Obviously the decision would have been just the opposite if the coastal belt had been held to belong, as a matter of law, to the United States rather than to Florida.

The observation of Mr. Justice Reed that "State ownership" of marginal lands "has been assumed" (United States v. California, 67 Sup. Ct. 1658, 1672 (1947)) in decisions relating thereto is amply sustained. For example, in Manchester v. Massachusetts the Court stated emphatically (139 U. S. 240, 264 (1891)):

The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation; and, except so far as any right of control over this territory has been granted to the United States, this control remains with the State.

This quotation was preceded by the following (id. at 258) :

We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tidewaters is a marine league from its coast.

The basic assumptions, and in some instances the holdings, of the other leading cases take for granted State sovereignty over the marginal belt. (C.J. Hendry Co. v. Moore, 318 U. S. 133, 131–135 (1943); Borax Consolidated v. Los Angeles, 296 U. S. 10, 15, 22 (1935); New Jersey v. Delaware, 291 U. S. 361, 371, 374–376 (1934); Appleby v. City of New York, 271 U. S. 364, 381 (1926); Shively v. Bowlby, 152 U. S. 1, 11, 13, 57-58 (1894); Knight v. United States Land Assn., 142 U. S. 161, 183 (1891); McCready v. Virginia, 94 U. S. 391, 394– 395 (1876); Smith v. Maryland, 18 How. 71, 74, 76 (U. S. 1855); Pollard's Lessee v. Hagan, 3 How. 212, 230 (U. S. 1845); Martin v. Waddel, 16 Pet. 367, 410 (U. S. 1842); Lipscomb v. Gialourakis, 101 Fla. 113, 133 So. 104 (1931); Dunham v. Lamphere, 3 Gray 268 (Mass. 1855).)

It is not the province of this article to trace in detail the history of the marginal belts as claimed by the different maritime states of the world in varying degrees for various purposes. The significant fact is that the legality of a marginal belt of at least some dimensions was established prior to the creation of the Federal Government by the States.

As to inland waters; the problem of what constitutes inland waters, as distinct from coastal waters, was not of major import prior to the California decision, but in view of the new distinction set up between the two, the task of delineating becomes vital. This field in itself

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would require an entire article, but some of the difficulties can at least be mentioned here. Is the test of the character of a bay mere visibility from headland to headland at its mouth? If so, is discernment of the other headland sufficient, or must people and objects thereon be distinctly discernible? Is the limit a fixed distance of 6 nautical miles from headland to headland? Or is effective control of the entrance by shore batteries the test? Or should some other test be applied? (Manchester v. Massachusetts, 139 U. S. 240, 258, 263 (1891); Bynkershoek, op. cit. supra, note 13, c. II, III; Jessup, op. cit. supra, note 13, at 355 seq.; Fraser, supra note 13, at 437-477.)

In Pollard's Lessee v. Hagan (3 How. 212 (U. S. 1845)) the title to lands in Mobile, formerly flooded at high tide, was in dispute. The Court held that Alabama rather than the United States held these lands, and that accordingly a patent from the United States could give no title thereto. The doctrine that Alabama, by virtue of its admission into the Union on an equal footing with the Original Thirteen States, had thereby become the owner of the tidelands within its boundaries was recognized in the California case to the extent of stating that California has a "qualified ownership of lands under inland navigable waters such as rivers, harbors, and even tidelands down to the low-water mark." (United States v. California, 67 Sup. Ct. 1658, 1664 (1947).)

If the Gulf of Mexico be an inland water, then Florida may retain title to its submerged areas on the Gulf side. Although the size of the Gulf, the nature of its boundaries, and the width of its connections with other bodies of water, all point to the conclusion that such a contention is probably untenable, it has at least been made.

Recently, in the determination of a boundary line in an oil lease, a company took the position that the Gulf of Mexico is an inland water and that Florida has the power to lease, for oil exploration, lands extending as far as 60 miles into the Gulf. (Minutes of Trustees of Internal Improvement Fund for September 1947, not yet printed.) This problem of inland waters affects other States as well. Logically, the Great Lakes are no more inland waters than are the Black Sea, the Red Sea, or the Mediterranean. What, then, of iron-ore deposits under the Great Lakes? Unless that area be arbitrarily designated inland water, over half of the States are directly and seriously affected by the new law just established.

Pursuing the analysis a step further, what remains of the inlandwater doctrine now? If a State owns to the low-water mark only, do inland waters exist any longer unless completely surrounded by the dry land of one State at low tide? If, however, some new theory is to be advanced regarding certain bays, on what principle should it be based? Again, the Florida Keys consist of a chain of small islands; I don't know how many hundreds of thousands. Logically, under the new law of the Supreme Court, each island still belongs to Florida, but the water and submerged lands between them, however limited in extent, are Federal. (This matter is not purely academic. The Overseas Road and Toll Bridge District issued bonds to finance the highway to Key West. Over 40 miles of road, bridges, and causeway, valued at more than $40,000,000 and including one bridge some 6 miles long, have been constructed along the course of the island chain. By a lease-purchase agreement involving servicing of the bonds this