Mr. HANCOCK. But is it not a fact that the Hobbs' resolution is no more, and no less, than a declaration of policy, and the question of the title would then be a matter to be litigated in the courts afterward.

Mr. STUART. It would be a matter to be litigated in the courts, but it would be an assertion there that the Navy was entitled to that oil that was beneath this water.

Mr. HANCOCK. But the resolution would be a mere declaration on the part of the legislative branch of the Government, would it not? Mr. STUART. Which would that much more affect the title, as I said. Now, as to the need of this oil, let me say this one thing about that and then I am through, and that is as to whether or not the United States Navy needs any more oil or not.

Our reserves of oil in Texas have increased during the past year nearly 2,000,000 barrels, our known reserves; and we had approximately 8,000,000 barrels in 1918, and in 1939 we had 9,447,000 barrels of known oil reserves in the State of Texas, and there has beeen a constant increase of oil reserves in the United States instead of a depletion of the oil reserves of the United States. It is just a question of bringing in these additional fields.

It is a question of the technique of procuring the oil, of discovering the oil in a much better manner than they ever had before, and that is the reason we are discovering so many additional wells down in the State of Texas, and that is the reason that our reserves are on the increase instead of the decrease, and I want to read you something on that point.

Mr. MICHENER. That is material here; it is very controversial, and the Navy Department makes a statement that it is needed; and it seems to me that you are wasting your time trying to convince the committee that you know more about it than they do.

Mr. SPRINGER. Let me ask you to go into another phase of Mr. Hobbs' argument that I have not heard you discuss. He advanced the theory of dormant rights that would bring this to life. Now, in view of the fact that California has asserted whatever these dormant rights are to the oil in the submerged land since 1894, and Texas since 1913, and the State of New York and other States to these so-called dormant rights along the coast line for 100 years, would you say that they are still dormant?

Mr. STUART. No, sir; I would not. And on that same point there is a case of Greer County between the States of Texas and Oklahoma, in which the State of Oklahoma came in and asserted all of the rights and interests to what is known as the Big Bend territory there, and Texas thought that it was not worth worrying about, just barren waste land, and we did not become concerned; and then they asserted that right to that dormant territory, and the State of Texas 20 years later, when some oil was developed up there, tried to come along and assert their rights; and at that time the Supreme Court of the United States held in that Greer County case that the matter was res adjudicata, and that the State of Texas had lost its rights because of the fact that Oklahoma had asserted those rights to that territory before.

Now, that line of cases that he is discussing in regard to asserting these different rights do not pertain to a matter between the States,

but they pertain to different matters, such as the fishing proposition along Alaska. That was between countries, and not between States of the Union, but that was the asserting of the rights of the United States against other countries. We were trying to protect those rights against Japan and some of the other countries, and there was a place where it was necessary for the Congress of the United States to go out and assert that right.

Mr. SATTERFIELD. With regard to that, do you contend that the States have surrendered any powers, either at the time of the adoption of the Constitution or subsequently which gives the right to this Government to own any land within the borders of the States except that acquired by condemnation and donation?

Mr. STUART. No, sir; there is no land or no title vested in the Government of the United States except as you say, except as to those things for navigation purposes, and for commerce, and commercial purposes. The only right that they have is the innocent use of the waters for the purpose of commerce and navigation.

Mr. MURDOCK. In the West there you find that in my State the Government has title to at least 74 percent of the entire land of the State, and that is by reason of the fact that they were reserved at the time that the State came into the Union.

Mr. STUART. And that is right; and in some of the States they hold it in trust, or in most of the States they hold it in trust for their benefit; but they did own that public land then, and it is a different matter, as you state.

Mr. GWYNNE. I think that in the hearings a year ago, somebody advanced the theory that if the Federal Government should assert claims to this land, and there would be a dispute between the two sovereignties over the land, that it would be a political question, which the Supreme Court could decline to review, and what would be your viewpoint on that?

Mr. STUART. I understand that in some of the matters that they were referring to, in regard to this line of decisions that they refer to, such as along the coast of Alaska, up there, that that was a matter of political question, a matter of policy to be determined by the Congress, and in an instance of that kind the Supreme Court would not have the power of course to override the Congress and would not interfere.

Mr. GWYNNE. That would apply in that case, but do you think that that same argument would apply here?

Mr. STUART. No, sir; I do not, because this is a matter of title. Mr. GWYNNE. This is a matter of property rights and title? Mr. STUART. Yes. This is a matter of patent or title, which has been passed on by that case of Manchester v. Massachusetts, and I think that that is a good case in point, and the Lewis Bluepoint Oyster Cultivating Co. case and any number of cases there, in regard to actual ownership of the oyster beds, and the only place they have interfered with that ownership was when that ownership interfered with the right of the use of that water for navigation, and that is the only instance.

Mr. MURDOCK. It has been my experience that a bill once introduced goes on until it is passed, and now it seems to me that inasmuch as this controversy has developed, particularly with reference

to California, that it might be advantageous not only to California but to Texas and all of the other States, to get the matter finally determined by the courts, and I am just wondering if you people would rather come back up here every year and present these fine arguments that you do, or to appear once in court and get the thing out of the way. That is the thing that is sticking in my mind, if that isn't the most expeditious and quickest way to get this controversy handled, and out of the way, to submit it to the courts and have it over with?

Mr. STUART. That might be true, if you eliminated anything in regard to the assertion of title, but you have an assertion of title, which would lend weight to their contention, that they did own it. and certainly no assertion of title should be entered.

Mr. Hobbs facetiously remarked that he gave us a good trip back up to Washington.

Mr. MICHENER. I suppose that you take out enough oil to pay for the trip?

Mr. STUART. And then some, because we have taken out better than $2,000,000 during the last year, and so that if we can delay that matter, we do not think that any action should be taken by the Congress toward asserting that right.

Mr. HANCOCK. If section 1 were eliminated, you would not object to the resolution.

Mr. STUART. We would object to it, and I do not want to be placed in the attitude that for any reason we think that a suit should be instituted, because we do not think that they have any shadow of a title to the lands in Texas in any way whatsoever. And consequently, we do not like to have a suit instituted or anything done that would attempt to assert anything against our ownership of this property.

Mr. MICHENER. It is suggested by Mr. Murdock, the representative from Utah, that this is a controversial question, and it is only fair to assume that there will come a time, someday and somewhere, when these rights will be litigated, and now it would seem to me that the sooner the better for everybody.

But it also seems perfectly clear from the hearings a year ago, and I think that we will arrive at that conclusion when we get through here, that the legal department of the Federal Government feels that it does not have sufficient color of title to warrant legal action without some declaration of policy on the part of the Congress. Mr. STUART. I feel that in that instance where the Department of Justice does feel that way about it, it is just like an attorney advising his client that it seems to him that he has no lawsuit, and they are saying to you that you have no lawsuit, and in that instance I do not think that you should institute a lawsuit or advise them to pass anything that would cause them to institute a lawsuit in this matter. Mr. MICHENER. I would like to see the thing tried out without any declaration on the part of Congress. We cannot perfect by declaration something we do not already have.

Mr. SATTERFIELD. Do you think that anything would be added to the issue if an assertion was made by the legislative branch of the Government?

Mr. STUART. If an assertion was made about the time that they sighted a Japanese vessel moving off around California, it might be

persuasive on the Supreme Court, and we certainly do not think that any assertion of ownership that might make a political question out of it should be made that might create some doubt in these cases. Mr. SATTERFIELD. It is persuasive, but it plays no particular part in the actual merit of the issues involved?

Mr. STUART. It is persuasive to some of the members of the Supreme Court, or might be such. As was stated here, I think that there are 100 cases, at least, that are decisive of this question of ownership of the submerged lands and the products beneath the soil throughout the United States; and if they followed those decisions and followed the law as it now exists, we do not think that there can possibly be any question as to the final outcome of the litigation.

Mr. MASSINGALE. Let me ask you one more question. Do you think that sovereignty as applied to the Government can either be increased or diminished by any resolution of Congress?

Mr. STUART. No, sir: I do not. I think that this matter, in this instance, is of the States' territory and that it carries with it the revenue and title and ownership to the same extent in this territory that it has in the land, and that is in my brief here from the various writers upon this question.

I think that they have that sovereignty and that right that they can exercise over this submerged territory, or submerged land, and that, as I said, was subject only to its innocent use by other nations of the world.

I thank you very much.

Mr. TOLAN. Is there anyone else from Texas?

Mr. STUART. We have the assistant attorney general here.

STATEMENT OF R. W. FAIRCHILD, ASSISTANT ATTORNEY GENERAL OF THE STATE OF TEXAS

Mr. FAIRCHILD. My name is R. W. Fairchild, assistant to the attorney general of the State of Texas.

Mr. WALTER. Mr. Fairchild, last year the attorney general's department of your State presented oral argument and a brief. Did you read that brief?

Mr. FAIRCHILD. I read the entire record.

Mr. WALTER. Are you adding anything?

Mr. FAIRCHILD. Yes, sir; I am. I would like leave to introduce a copy of my brief for the record and furnish additional copies here for such members of the committee as would like to have it.

(The brief referred to is as follows:)

BEFORE THE COMMITTEES OF THE CONGRESS OF THE UNITED STATES CONSIDERING HOUSE JOINT RESOLUTION 176 AND SENATE JOINT RESOLUTION 24, RELATIVE TO THE ASSERTION BY THE UNITED STATES OF TITLE TO SUBMERGED LANDS CONTAINING OIL DEPOSITS SITUATED BELOW LOW-WATER MARK AND WITHIN 3-MILE LIMIT ADJACENT TO THE SHORES OF THE LITTORAL STATES OF THE UNION

BRIEF SUBMITTED BY THE ATTORNEY GENFRAL OF THE STATE OF TEXAS IN OPPOSITION TO THE ADOPTION OF HOUSE JOINT RESOLUTION 176 AND SENATE JOINT RESOLUTION 24

To the Committees of Congress Considering House Joint Resolution 176 and Senate Joint Resolution 24:

This brief is submitted in opposition to the adoption by the Congress of House Joint Resolution 176 and Senate Joint Resolution 24.

The contentions of the advocates of the legislation pending before this committee may be succinctly stated as follows:

1. That the States have no title to submerged lands below water mark and extending out to the 3-mile limit-that that title is in no one.

2. That within such limits the United States has absolute control for the purposes of—

A. The regulation of interstate and foreign commerce, which includes the regulation of navigation.

B. National defense.

C. To provide and maintain a navy.

D. National sovereignty.

3. That the existence of control for such purposes authorizes the United States to appropriate the title to oil deposits, if any, existing beneath such submerged lands.

We shall attempt to deal with these contentions in their order as given above.

TITLE OF THE STATES TO SUBMERGED LANDS UNDER WATERS FROM LOW-WATER MARK TO 3-MILE LIMIT

The doctrine advanced in support of the legislation sought by the Navy Department, that submerged lands from low-water mark to the 3-mile limit belong to no one, is certainly, in these troublous times, a dangerously novel theory to be suggested by a department of the Government charged with the national defense. Fortunately, however, for the peace of mind of citizens of the United States, the doctrine is completely and demonstrably fallacious. It has long been fully recognized that a State's territory extends into the sea a marine league from its coast line, both by the law of the nations and by the decisions of our own Supreme Court.

"All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or marine league, over the waters adjacent to its shores. Indeed, such waters are considered as part of said that great jurist, Story, in The

* * *

the territory of the sovereign

Anna (1 F. Cas. No. 397; 1 Gall. 62, 63).

"We all know that the rule of law on this subject is 'terræ dominium finitur ubi finitur armorum vis,' and since the introduction of firearms, that distance has usually been recognized to be about 3 miles from the shore." Per William

Scott (Lord Stowell) in The Anna (5 C. Rob. 373, 385c; 165 Reprint 805; Evans Cas. 65).

As early as March 5, 1804, Chief Justice Marshall recognized the even then well-established rule that dominion and control of a State did not stop at its shore line, but extended out into the sea for 3 miles, when he said:

"The authority of a nation within its own territory is absolute and conclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory and is a hostile act which it is its duty to repel."

Certainly that expression by Chief Justice Marshall cannot be justified except upon the basis that the territory within the 3-mile limit is a part of the domain of the littoral State and subject to the exclusive proprietary rights existing in that State.

This principle has been given expression by many of the famous writers on | international law. Wheaton, in his treatise on the subject, expressed it admirably when he said:

* * by the generally approved usages of nations, which forms the basis of international law, the maritime territory of every State extends: First. To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same State.

Secondly. To the distance of 1 marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the State.

Thirdly. To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon shot from both shores, and communicating from one sea to another.

"The reasons which forbid the assertion of an exclusive proprietary right to the sea in general will be found inapplicable to the particular portions of the element included in the above designations" (Wheaton, International Law, 4th Eng. ed., by J. B. Atlay, s. 187, at p. 292).

Similar expressions are found in Oppenheim, International Law (3d ed., sec. 185); Hall, International Law (7th ed., p. 157); Vattel's Law of Nations; Wilson, International Law (pp. 91 and 92).