the Supreme Court's decisions as resolving the legal issues, as I think they should, they would be hard put to it to advance one substantial reason of policy why this enormous donation by the United States to the three coastal States should be made.

Since S. 940 is wholly objectionable to the Department of Justice, I shall not point out other provisions of the bill which we believe to be defective. But there is one provision of this which I discussed when appearing before you in connection with S. 1545, Eighty-first Congress, and which, I feel, warrants specific mention at this time. That is section 5 (b) which would give to the United States, in time of war or national emergency, the right of first refusal to purchase, at the prevailing market price, the resources produced from these lands. This, of course, gives to the United States nothing which it does not already have under the power of eminent domain. But the astounding aspect of this proposal is that the bill would give away property of the United States in the form of petroleum resources and then require it to pay the full value of that property when buying it back to meet the needs of a national emergency. Of course, the lessees of the State or of the United States producing such petroleum would, in any event, be entitled to and would receive, under their lease contracts, the customary seven-eighths of the value of the production, but it is difficult to understand why the coastal States, to whom, as a matter of grace, the property of the United States would be surrendered, should receive a one-eighth royalty on that property when the United States is required to buy it back for war purposes.

The committee has heard much testimony to the effect that, until Congress acts, no new development can be undertaken with the result that new reserves cannot be developed at a time when the country needs oil for national defense. This bill is woefully inadequate to meet this situation for it deals only with that portion of the Continental Shelf within the State boundaries. This is but a minor portion of the Continental Shelf and the status of the remainder will continue to be without enabling legislation necessary to meet the current emergency. Thus, even though this bill should become law, it would be inadequate to meet our Government's immediate and pressing need.

Up to this point in my statement, I have assumed, together with the proponents of S. 940, that Congress has the constitutional power to give away to the States irrevocably the Federal Government's interest in the resources of the ocean bed. At my last appearance before this committee, I stated that I felt it my duty to bring to the committee's attention the substantial doubt which exists on this point. I am impelled to refer to it again. In the Texas case, the Supreme Court said that once low-water mark is reached

property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereignty

and

If the property, whatever it may be, lies seaward of low-water mark, its use, disposition, management, and control involve national interests and national responsibilities (339 U. S. at 719).

It may well be that the national interest in these resources is such that it cannot be granted irrevocably any more than Congress can give up the Federal Government's control over foreign relations. I

do not wish to be understood as giving this as my definitive opinion. I am expressing a doubt, based upon the rationale of the Supreme Court's opinions.

Mr. Chairman, these are the reasons the Department of Justice is opposed to S. 940. As we view the situation, the Congress must decide whether the tremendously valuable mineral resources discovered and yet to be discovered beneath the oceans beyond our shores should be conserved and developed for the benefit of the people of the entire country, to whom they now belong, or should be irrevocably surrendered by the Federal Government to certain coastal States to be exploited and enjoyed by those States alone. To the Department of Justice, there can be but one answer to that question. As the President stated on January 4, 1949, in his message on the state of the Union (95 Congressional Record, p. 68):

We must adopt a program for the planned use of the petroleum reserves under the sea, which are-and must remain-vested in the Federal Government.

Senator LONG. You make the statement here that this land would be exploited. Do you know of any evidence of the States using improper conservation methods in the production of oil in the tidelands or in the marginal sea?

Mr. PERLMAN. I do not know of my own knowledge, Senator. I have heard it said that there have been instances where the production under States' leases was very wasteful. I do not know.

Senator LONG. Have you also heard it said that the States have done an extremely good job of conservation and administration of their leases in production of petroleum?

Mr. PERLMAN. I am not competent really to speak on that subject because I have never gone into it. Maybe the Interior Department would know more about it.

Senator LONG. When you speak of exploitation, then, you speak without knowledge of it; you just guess on that subject?

Mr. PERLMAN. I speak without any personal knowledge. I speak with this knowledge, Senator: That in the emergency in which we now find ourselves it seems to me to be evident that the Federal Government ought to have a veto power on the use of oil and the exploitation of oil; and in the bill that was drawn by the Department of the Interior, the Department of Defense and the Justice Department, and which was introduced in Congress-I think the number was S. 923, the last Congress-we specifically provided in that bill that the National Security Resources Board, I believe, was the agencyMr. WHITE. The Secretary of Defense.

Mr. PERLMAN. The Secretary of Defense would have a right to withdraw, with the Secretary of the Interior, certain areas from use when it appeared to them that they may be needed for the national defense.

Senator LONG. Might I read this statement to you which is attributed to Secretary Krug, apparently testifying before the Senate Judiciary Committee of the Eightieth Congress, with reference to policy of State control. He said:

They have done a miraculous job. I think they will continue to do a miraculous job whether or not the United States gives up its ownership of these lands to the States.

Apparently there was one Secretary of the Interior who felt the State conservation policies were very good.

I believe when Mr. Ickes testified before the committee I asked him specifically if he had any indications of waste on the part of State management and he did not cite any. Although apparently there has been some suggestion at times that that was the case, those confronted with the opportunity to prove those suggestions, have never produced any evidence of it.

Mr. PERLMAN. I do not make any such charge. I think the word as used in my statement has no sinister connotation whatever. Exploitation meant the development, really, more than anything else. It was not intended to cast any reflection on anyone.

Senator ANDERSON. May I add one thing here. I was a little bit surprised by the statement that the British Government surrendered to the Colonies and asked to have that checked because it seemed to me there had been a different situation. In the Definitive Treaty of Peace Between the United States of America and His Britannic Majesty, September 3, 1783

Senator LONG. Would you read that from the actual language used?

Senator ANDERSON. Yes. I do not wish to read it all.

Senator LONG. Could I see it to read the part I had in mind?

Senator ANDERSON. It does say this

Senator CORDON. Mr. Chairman, let the whole go into the record. Senator ANDERSON. It is signed by D. Hartley, John Adams, Benjamin Franklin, and John Jay.

Senator LONG. Might I point to the language I had in mind? Senator ANDERSON. It does not recognize them as independent States.

Senator LONG. Article I of the treaty says:

His Britannic Majesty acknowledges the said United States, viz New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent States; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, proprietary and territorial rights of the same, and every part thereof.

Certainly spelling those States out individually and describing them as free and independent States indicated the Crown's intention to surrender to the States as individual States rather than as a central government.

Senator ANDERSON. I wonder then why the individual States did not sign the treaty.

Mr. PERLMAN. Of course, the treaty was made by the United States and not by any individual State. But I did want to say this, Senator

Senator LONG. Now the United States at that time can best be described by the Articles of Confederation, which states that each State retains its sovereignty, freedom, and independence.

Mr. PERLMAN. That is right; that was before the adoption of the Constitution of the United States.

Senator LONG. Right. And therefore when a representative group representing these individual States, by virtue of the Articles of Confederation, signed that treaty, they were signing for the States, which were retaining their independence by the express stipulation of the Articles of Confederation.

Mr. PERLMAN. Senator, let me say this to you because I think the answer to the suggestion you make is contained in this situation, which is entirely apart from that; and that is, at the time that treaty was made and at the time the Constitution of the United States was adopted-or, let's start from the time that England ceded its rights to the sovereign States and to the United States, whichever one they ceded them to. Senator, this is the important point: England did not claim, had not previously claimed, any rights in the marginal sea, and when the States were formed, when the Union was created, no State had any rights in the marginal sea. This concept that the Supreme Court recognizes today was not even in existence at that time.

Senator CORDON. When did it come into existence?

Mr. PERLMAN. Mr. Chairman, the interesting thing-
Senator CORDON. When did it come into existence?

Mr. PERLMAN. We are arguing the case in the Supreme Court again, but let me tell you this about it.

Senator CORDON. All right.

Mr. PERLMAN. The first claim of a 3-mile limit was made not on behalf of any State. It was made by Thomas Jefferson, when he was Secretary of State, on behalf of the United States. It never was made by any State. And the truth is that the States never claimed any 3-mile area then, and some of the States today have not yet claimed any rights in any marginal sea. They have never got around to doing it; that is all. And the Supreme Court in the case of Toomey v. Witsell, which dealt with fishing rights off the Carolinas, said in that case and with no such proposition as we are dealing with here involved, but in another connection-the Supreme Court said, that the original 13 States did not have any proprietary rights in the marginal sea. They were never claimed by them. The rights of the United States were claimed in the first instance, as the chairman said this morning, by Thomas Jefferson. And the record shows-we referred to the record in the brief I was going to send you the record shows there was uncertainty as to what area outside of the coast should be claimed by the United States, and Thomas Jefferson said:

Make it 3 miles because that is the maximum distance of a cannon shot between shore and ship.

And that area, 3 miles, was asserted then on behalf of the United States, not on behalf of any particular State.

Senator CORDON. Nor any other of the nations.

Mr. PERLMAN. Even then there were no proprietary rights claimed in the bed of the sea. Nobody was thinking about the bed of the sea in those days. And we told the Court, and the Court agreed with us, in 1845 and in 1850, when Texas came into the Union and when California came into the Union, these rights in the marginal sea, such as they were, had not been claimed by any State. The rights that we are dealing with today-full dominion-never were claimed by States. They never were. And it is only in recent years that such rights have been recognized. The last international consideration of the subject, I think, was at The Hague in 1930, when, although no treaty was adopted on the subject, the proposition given general acquiescence was the proposition that all sovereign nations-not political subdivisions

of the nations, but nations had a right to claim full sovereignty within a limit of 3 miles.

Now there has been a lot of trouble since then. The United States has consistently held to that 3 miles. It is to its advantage to hold to that 3 miles because, maybe as a result of some of the statements that have been made by Texas and other states engaged in this litigation, other sovereign nations today are beginning to assert claims much farther out than 3 miles. And we have been called on in the Department of Justice-the committee ought to know it-to submit not only briefs but statements we have made to the Supreme Court to other nations so that they can use them in litigation before the World Court where this is really a live question. And our State Department thinks that it is to our interest to hold to the 3-mile limit because of many factors involved in our relationships with other nations.

This is a strange thing, Senator: Texas under S. 940—a part I never got around to even discussing wants to claim its boundaries, which are 3 leagues in the Gulf of Mexico as the extent of its sovereign authority, in derogation of the authority of the United States. In their fishing operations, fishing operations of citizens of Texas, they want to go up to a line 3 miles of the Mexican coast, but they do not want the Mexicans to come within 3 leagues, or 9 miles of their coast. And that is a problem that is before the State Department today.

Senator ANDERSON. Unfortunately, I have an appointment I have to keep, and I am going to ask Senator Long to preside. Before I do, I would like to ask consent to insert in the record, and Senator Long will consent, I know, the preliminary treaty, which again refers to the Commissioners of the United States; the definitive treaty, and the declaration that Thomas Jefferson made. If those three could be incorporated-they are not long-in the record at this point, it would be helpful.

(The documents referred to read as follows:)

PROVISIONAL ARTICLES

Between the United States of America, and His Brittanic Majesty

Nov. 30, 1782.

[8 Stat. 54]
ARTICLES

Agreed upon, by and between Richard Oswald, Esquire, the Commissioner of His Britannic Majesty, for treating of Peace with the Commissioners of the United States of America, in Behalf of his said Majesty, on the one Part, and John Adams, Benjamin Franklin, John Jay, and Henry Laurens, four of the Commissioners of the said States, for treating of Peace with the Commissioner of His said Majesty, on their Behalf, on the other Part, to be inserted in, and to constitute the Treaty of Peace, proposed to be concluded between the Crown of Great-Britain and the said United States; but which Treaty is not to be concluded untill Terms of a Peace shall be agreed upon between GreatBritain and France; and His Brittanic Majesty shall be ready to conclude such Treaty accordingly.

Whereas reciprocal advantages and mutual convenience are found by experience to form the only permanent foundation of peace and friendship between states: it is agreed to form the articles of the proposed treaty, on such principles of liberal equity and reciprocity, as that partial advantages (those seeds of discord) being excluded, such a beneficial and satisfactory intercourse between the two countries may be established, as to promise and secure to both perpetual peace and harmony.