United States v. Louisiana (363 U.S. 1)/Dissent Douglas

Mr. Justice DOUGLAS, dissenting in part.

Texas was admitted to the Union in 1845 (9 Stat. 108) pursuant to a prior Joint Resolution (5 Stat. 797) which reserved for adjustment by the United States 'all questions of boundary that may arise with other governments.' Texas as early as 1836 had claimed, as the opinion of the Court shows, a seaward boundary of 'three leagues from land.' Such a claim conflicted with our national policy in the Gulf, since the United States before then had in treaties with Spain (8 Stat. 252) and with Mexico (8 Stat. 372) described the boundaries between the two countries west of the Mississippi as commencing 'on the Gulf of Mexico, at the mouth of the river Sabine, in the sea.' Moreover the Convention of 1838 to establish the boundary between the United States and Texas (8 Stat. 511) agreed to the running and marking of 'that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.' Certainly in that Convention Texas was not going so far as to claim, as she had earlier, 'three leagues' into the Gulf.

I agree with the Court that there was nothing done at or subsequent to that time to approve the Texas claim to three leagues from land unless it be the Treaty of Guadalupe Hidalgo signed on February 2, 1848, 9 Stat. 922, by the United States and Mexico and which, inter alia, fixed the 'boundary line between the two republics' in the Gulf of Mexico 'three leagues from land, opposite the mouth of the Rio Grande.' Can we say that the United States sat at that conference table negotiating for Texas and her boundary claim? Was the seaward boundary once claimed by Texas now claimed by the United States in recognition that Texas owned it?

There is not a word in the history of the negotiations to indicate that the United States had moral or legal claim to the three-league belt because of the earlier claim of Texas. There is no suggestion that the United States claimed derivatively from the right of Texas and thus upheld the position of Texas, approving the claim made by Texas in 1836. There is not a word indicating that the Treaty of 1848 was in form or in essence an undertaking by Congress to fix the boundaries of Texas under the 1838 convention.

The terms of the 1838 Convention do not support any such construction for, as I have said, that Convention fixed the boundary as extending 'from the mouth of the Sabine, where that river enters the Gulph of Mexico,' not 'three leagues' seaward of that point. To conclude, therefore, that the Treaty of Guadalupe Hidalgo was intended to fix the land and sea boundaries of Texas in accordance with the Texas Boundary Act of 1836 is to indulge in mental gymnastics beyond my capacities. The agreement by the United States to fix the boundaries of Texas was not contained in the unilateral act of Texas reflected in her 1836 statute but by the Convention of 1838 which required the seaward boundary to extend from 'the mouth of the Sabine, where that river enters the Gulph of Mexico.' The obligation in this Convention thus is at war with any inference that the seaward boundary was to be 'three leagues' from shore. Cf. United States v. State of Texas, 162 U.S. 1, 32, 16 S.Ct. 725, 731, 40 L.Ed. 867.

While the 1838 Convention failed to include any seaward territory, a Joint Commission appointed to make the survey pursuant to the 1838 Convention actually marked the boundary between the United States and the Republic of Texas at the mouth of the Sabine River-not three leagues into the Gulf of Mexico.

It is true that the Joint Resolution of 1845 (5 Stat. 797) called for the formation of Texas 'subject to the adjustment by this government of all questions of boundary that may arise with other governments.' But the situation envisaged by that clause soon changed. The Mexican war broke out in 1846; and the Treaty of Guadalupe Hidalgo finally brought it to a close. By the time the treaty negotiations started the United States was thinking in new dimensions. The problem was no longer finding and establishing what the Texas boundaries had been. We then put that question to one side. The instructions to our representative, Nicholas P. Trist, which included a projet of the Treaty, read in part, 'The extension of our boundaries over New Mexico and Upper California, for a sum not exceeding twenty millions of dollars, is to be considered a sine qua non of any treaty. You may modify, change, or omit the other terms of the proje t if needful, but not so as to interfere with this ultimatum.' If Lower California was included, Trist was authorized to pay up to $25,000,000. Trist recorded at his first conference with the Mexican Commissioners that 'our claim for extension of territory' was placed 'on the ground of indemnity for the expenses of the war.' The acquisition of territory from Mexico as indemnity was repeated over and again by President Polk in his message of December 7, 1847. Thus he said, ' * *  * if no Mexican territory was acquired, no indemnity could be obtained.' Again, '(t)he doctrine of no territory is the doctrine of no indemnity.' And what he went on to say should remove any doubts about the nature of the controversy with Mexico. First, it will be apparent from what follows that 'three leagues' were not a part of his thinking when it came to the seaward boundary. Second, it is obvious that the sole preoccupation was with the acquisition of land from Mexico.

'The commissioner of the United States was authorized to     agree to the establishment of the Rio Grande as the boundary,      from its entrance into the Gulf to its intersection with the      southern boundary of New Mexico, in north latitude about      thirty-two degrees, and to obtain a cession to the United      States of the provinces of New Mexico and the Californias,      and the privilege of the right of way across the isthmus of      Tehuantepec. The boundary of the Rio Grande, and the cession     to the United States of New Mexico and Upper California,      constituted an ultimatum which our commissioner was, under no      circumstances, to yield.

'That it might be manifest not only to Mexico, but to all     other nations, that the United States were not disposed to      take advantage of a feeble power, by insisting upon wresting      from her all the other provinces, including many of her      principal towns and cities, which we had conquered and held      in our military occupation, but were willing to conclude a      treaty in a spirit of liberality, our commissioner was      authorized to stipulate for the restoration to Mexico of all      our other conquests.

'As the territory to be acquired by the boundary proposed     might be estimated to be of greater value than a fair      equivalent for our just demands, our commissioner was      authorized to stipulate for the payment of such additional      pecuniary consideration as was deemed reasonable.' (Italics      added.)

And when the Treaty had been ratified by both countries and President Polk reported to Congress, he did not speak of settlement of any boundaries of the former State of Texas. He stated, 'The extensive and valuable territories ceded by Mexico to the United States constitute indemnity for the past.' And he expounded on the valued additions of New Mexico and Upper California to our domain. There is no mention of any settlement of any claim of Texas to a seaward boundary 'three leagues' off shore. Nor is there any reference to any boundary settlement based on old Texas claims. This is not surprising, for the Treaty of Guadalupe Hidalgo was part of our empire building, not the determination of old boundaries.

The Treaty of Guadalupe Hidalgo has until now never been considered to have played any part in determining any Texan boundary question. As stated by the Court in United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867, the boundary question was resolved by the Act of September 9, 1850 (9 Stat. 446). After quoting the 1836 Act by which Texas claimed 'three leagues from land' as her seaward border, the Court went on to say:

'This boundary had not been defined when Texas was admitted,     as a State, into the Union, with the territory 'properly      included within and rightfully belonging to the Republic of      Texas.' The settlement of that question, together with      certain claims made by Texas against the United States, were      among the subjects that engaged the attention of congress      during the consideration of the various measures constituting      the compromises of 1850. The result was the passage of the     above act of September 9, 1850, c. 49, the provisions of      which were promptly accepted by the State of Texas. This     legislation of the two governments constituted a convention      or contract in respect of all matters embraced by it. The settlement of 1850     fixed the boundary of Texas 'on the north' to commence at the      point at which the 100th meridian intersects the parallel of      36 30 north latitude, and from that point the northern line      ran due west to the 103d meridian, thence due south to the      32d degree of north latitude, thence on that parallel to the      Rio Bravo del Norte, and thence with the channel of that      river to the Gulf of Mexico.' 162 U.S. at page 39, 16 S.Ct. at page 733.

Drawing the line 'to the Gulf of Mexico' is a far cry from drawing it to a point 'three leagues' from the shore. What we do today is quite inconsistent with what a unanimous Court in United States v. State of Texas, supra, decided in 1896. What the Court said was not decided until 1850 we now say was decided earlier.

Though the United States and Mexico by the Treaty of Guadalupe Hidalgo established land boundaries between the two countries, Congress never recognized that the Treaty established any boundaries of Texas. In her 1836 statute, Texas not only claimed the three-league belt in the Gulf of Mexico but also much of the territory lying west and north of her present boundaries, including eastern New Mexico which, like the three-league belt, was acquired under the Treaty by the United States. Congress in the 1850 compromise paid Texas $10,000,000 to relinquish its claim to this territory. Yet this payment was regarded by Congress not as purchase price but as settlement of a disputed claim. Accordingly, it was early held that eastern New Mexico, though claimed by Texas, was not brought into the Union by the Joint Resolution of 1845 and that the Treaty of Guadalupe Hidalgo did not establish what the Texas boundaries had been at the time of its annexation. De Baca v. United States, 1901, 36 Ct.Cl. 407. I cannot understand how the Treaty can be said to have established a seaward boundary when it did not fix the inland boundaries of Texas. The Court does not suggest that all the land claimed by Texas in her 1836 statute and subsequently ceded to the United States in the Treaty of Guadalupe Hidalgo was 'territory properly included within, and rightfully belonging to the Republic of Texas' within the meaning of the Joint Resolution of 1845. Yet I can see no basis for deciding that the Treaty, though not recognizing the validity of the western boundary claims of Texas, did establish and fix other Texas boundaries. If the Government was not negotiating on behalf of Texas in acquiring the eastern New Mexico territory, how can it be said to have done so with respect to the seaward boundary claim?

The southwestern boundary of Texas was confirmed in the 1850 Compromise to lie along the Rio Grande 'to the Gulf of Mexico.' The 1838 Convention had fixed the eastern boundary at 'the mouth of the Sabine.' Thus, on the two occasions when the United States and Texas negotiated and agreed upon boundaries and when they would have been most likely to have settled the question, no extension of the Texas territory into the Gulf was recognized. The conclusion for me is irresistable that the seaward boundary, so far as Texas was concerned, was so inconsequential as to require or receive no settlement. I conclude that in terms of § 4 of the 1953 Act the boundary of Texas reserved for later adjudication when Texas was admitted to the Union was on its seaward side never approved by Congress to be three leagues from shore.

Why then the reference in the Treaty to the 'Boundary line' between the United States and Mexico as 'three leagues' from land in the Gulf of Mexico?

The Court says that the United States in negotiating the Treaty attempted to follow the 1836 Texas Act. The project of the Treaty given to Trist did provide for a boundary line commencing 'three leagues from the land opposite the mouth of the Rio Grande.' But neither it nor the accompanying instructions made any reference to the 1836 Act of Texas. Trist was not told to take the 1836 Act as his guide when it came to seaward boundaries. I can find nothing in the instructions to Trist which relates his duties in negotiating the Treaty to what Texas had claimed in 1836, nor does the Court refer us to any such instruction. To be sure, Trist's predecessor, John Slidell, had been advised by the Secretary of State, Mr. Buchanan, in a letter dated November 10, 1845, that 'The Congress of Texas, by the act of December 19, 1836, have declared the Rio del Norte (Rio Grande), from its mouth to its source, to be a boundary of that republic.' Trist knew of these earlier instructions. Yet if he followed them literally he would have negotiated a boundary beginning 'at the mouth' of the Rio Grande not 'three leagues from land opposite the mouth.' And, as I have pointed out, the purpose of Trist's mission was much different from that of Slidell's. Slidell was sent to Mexico before the war to settle a boundary dispute. Trist went to obtain the fruits of our conquest of Mexico. The Court concedes that Slidell's instructions demonstrate 'total insensitivity to any problem of a seaward boundary.' I agree. But I cannot take the additional step that, although our State Department was wholly insensitive to the problem of a seaward boundary, it was nonetheless trying to stand in the shoes of Texas and get Mexico to validate the old boundary claims of Texas. So far as I can deduce, this is sheer speculation.

Much less speculative is the reason advanced in 1875 by Hamilton Fish, Secretary of State.

In 1874 Lord Derby had raised for Great Britain a question with regard to Spain's claim of jurisdiction of two leagues from the Spanish coast. Hamilton Fish replied on January 22, 1875, as follows:

' * *  * I have the honor to inform you that this Government      has uniformly, under every administration which has had      occasion to consider the subject, objected to the pretension      of Spain adverted to, upon the same ground and in similar      terms to those contained in the instruction of the Earl of      Derby.

'We have always understood and asserted that, pursuant to     public law, no nation can rightfully claim jurisdiction at      sea beyond a marine league from its coast.

'This opinion on our part has sometimes been said to be     inconsistent with the facts that, by the laws of the United      States, revenuecutters are authorized to board vessels      anywhere within four leagues of their coasts, and that by the      treaty of Guadalupe Hidalgo, so called, between the United      States and Mexico, of the second of February, 1848, the      boundary line between the dominions of the parties begins in      the Gulf of Mexico, three leagues from land.

'It is believed, however, that in carrying into effect the     authority conferred by the act of Congress referred to, no      vessel is boarded, if boarded at all, except such a one as,      upon being hailed, may have answered that she was bound to a      port of the United States. At all events, although the act of     Congress was passed in the infancy of this Government, there      is no known instance of any complaint on the part of a      foreign government of the trespass by a commander of a      revenue-cutter upon the rights of its flag under the law of      nations.

'In respect to the provision in the treaty with Mexico,  it may be remarked that it was probably suggested by the   passage in the act of Congress referred to, and designed   for the same purpose, that of preventing smuggling. By  turning to the files of your legation, you will find   that Mr. Bankhead, in a note to Mr. Buchanan of the 30th   of April, 1948, objected on behalf of Her Majesty's   government, to the provision in question. Mr. Buchanan,  however, replied in a note of the 19th of August, in   that year, that the stipulation could only affect the   rights of Mexico and the United States, and was never   intended to trench upon the rights of Great Britain, or   of any other power under the law of nations.'

The Act referred to was that of March 2, 1799 (1 Stat. 627), which provided in § 54 that it shall be lawful for our collectors, naval officers, inspectors, and officers of revenue cutters to board ships bound to the United States 'within four leagues of the coast' for the purpose of controlling or preventing smuggling.

That this was the purpose gains collateral support from a series of treaties concluded by Mexico in the latter half of the nineteenth century with China, the Dominican Republic, El Salvador, France, Germany, the Netherlands, Norway and Sweden, and the United Kingdom, which state that the 'three league' belt (or at times a broader one) was being used for certain limited reasons of law enforcement.

These treaties reflect what Hamilton Fish as Secretary of State said about the Treaty of Guadalupe Hidalgo and its 'three league' provision. They show a practice of exercising extraterritorial regulation beyond the usual three-mile limit with respect to customs and smuggling. It is true that the Treaty of Guadalupe Hidalgo speaks in terms of 'boundary.' But, if it meant 'boundary' in the technical property sense, it would mark a line that separated the territory of the United States and Mexico and established a territorial claim good against all comers. Our State Department from the beginning insisted that was not intended. When Great Britain protested in 1848 that the Treaty of Guadalupe Hidalgo did not respect the three-mile limit which 'is acknowledged by international law and practice as the extent of territorial jurisdiction over the sea that washes the coasts of states,' Secretary of State Buchanan's answer (which, as we have noted, Hamilton Fish referred to in his communication of January 22, 1875) was as follows:

'In answer I have to state, that the stipulation in the     treaty can only affect the rights of Mexico and the United      States. If for their mutual convenience it has been deemed     proper to enter into such an arrangement, third parties can      have no just cause of complaint. The Government of the United States never intended     by this stipulation to question the rights which Great      Britain or any other power may possess under the law of      nations.'

That has consistently been our construction. I have already referred to what Secretary Fish said in 1875. When Mexico in 1935 undertook to extend the breadth of Mexican territorial waters from three to nine miles, our Ambassador Josephus Daniels on instructions from the State Department protested, reserving 'all rights of whatever nature so far as concerns any effects upon American commerce from enforcement of this legislation.' And when Mexico in reply referred to the Treaty of Guadalupe Hidalgo as justifying her claim to nine miles, the State Department reiterated among other things our consistent position that the treaty provision extending the 'boundary' into the Gulf for three leagues was included to give the two nations jurisdiction to that distance at that particular point 'to prevent smuggling.'

It seems apparent from this history that the United States in negotiating the Treaty of Guadalupe Hidalgo was far from determining that the metes and bounds of our property on the seaward side of the Gulf ran to three leagues. The three-league provision in purpose and presumed effect had quite a different aim. It had no aim to assert derivatively a title that Texas had claimed. Its aim was merely to mark a zone where, so far as the two contracting parties were concerned, our law enforcement agencies could maintain effective patrols. If this history shows nothing else, it shows that the United States had a national interest in having the three-league belt recognized for its own purposes, whereas Texas up to the time oil was discovered offshore placed no value whatsoever on a seaward boundary. For me the argument becomes too thin to say that the United States, though nominally negotiating on her own behalf, was claiming the three-league maritime belt on behalf of Texas.

If we acted today with the precision and meticulous care which is demanded in title disputes, we could not, I think, say that the United States in the Treaty of Guadalupe Hidalgo recognized or approved the Texas claim that the territory of Texas extended three leagues from shore.

Yet if we are to decide these cases by substandards (lessening the requirements of proof as we should do if Congress intended to grant whatever the parties fairly claimed), then I agree with Mr. Justice Black that the discrimination in favor of Texas and against Louisiana, Alabama, and Mississippi is quite unjustified.

If the southeast corner of Texas was three leagues offshore, it is difficult for me to see how the southwest corner of Louisiana was not at the same point. From the beginning the United States and Spain fixed their corner west of the Mississippi 'on the Gulph of Mexico, at the mouth of the river Sabine, in the sea.' 8 Stat. 254. If we move the Texas boundary out three leagues, it is hard to see why Louisiana's does not accompany it. It has long been recognized that a part of Louisiana's border is 'a water boundary' that extends 'to the open sea or Gulf of Mexico,' State of Louisiana v. State of Mississippi, 202 U.S. 1, 43, 26 S.Ct. 408, 419, 50 L.Ed. 913, and includes 'the deep-water sailing channel line as a boundary.' Id., 202 U.S. at page 44, 26 S.Ct. at page 419.

The enabling Act authorizing the people of the Territory of Orleans to form Louisiana described the territory as running 'to the gulf of Mexico; thence bounded by the said gulf * *  * including all islands within three leagues of the coast.' 2 Stat. 641. The boundaries described in the Act admitting Louisiana to the Union are similarly described as 'to the gulf of Mexico; thence, bounded by the said gulf * *  * including all islands within three leagues of the coast.' 2 Stat. 701, 702.

As respects Mississippi, Congress in the Enabling Act (3 Stat. 348) provided that the territory included in the new State would run from a specified point on the Gulf of Mexico 'westwardly, including all the islands within six leagues of the shore.' This was the boundary description used since George III of Great Britain described West Florida as 'bounded to the southward by the Gulf of Mexico, including all islands within six leagues of the coast.'

Alabama when a territory had two of its boundaries described as 'thence due south to the Gulf of Mexico, thence east-wardly, including all the islands within six leagues of the shore, to the Perdido river.' 3 Stat. 371. This language was repeated in the Enabling Act. 3 Stat. 489.

The United States concedes that, so far as Louisiana, Mississippi and Alabama are concerned, all the submerged lands between the mainland and the islands are sufficiently enclosed to constitute inland waters that passed to the State on its entry into the Union. Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565. It further concedes that these States have rights to the submerged lands within three miles of the islands under the ordinary three-mile rule.

If we were to require the degree of proof of ownership which is ordinarily required in title disputes, I would agree that neither Louisiana, Alabama, nor Mississippi has met the burden of proof. But if standards and requirements as lax as those used to grant Texas three leagues from shore are sufficient for her, they should be sufficient for these other three States.

The heart of the Texan claim is that the United States and Mexico recognized that there was a three-league maritime belt which each would respect and that this was done in recognition of the validity of the claims contained in the 1836 statute of Texas. This belt was called a 'boundary'; but, as I have tried to demonstrate, it was not a territorial claim but only a demarcation of zones where the parties' respective law enforcement activities would be recognized and approved. The Gulf presents peculiar problems due to its shallow coast. The shallowness of its waters is well documented and our Government was well aware of this condition in 1848. These are the persuasive facts behind the creation of the three-league belt by the Treaty of Guadalupe Hidalgo and by Mexico in the other treaties concerning the Gulf which she negotiated with other nations.

If the policy of measuring the zone of the United States as 'three leagues' into the Gulf off the shore of Texas is to give Texas property rights to the submerged lands in that zone, the beneficiaries of that concern should be all our Gulf States. At best the language used to describe the seaward territories of Louisiana, Alabama, and Mississippi is ambiguous. The words 'to the Gulf of Mexico * *  * including all of the islands' within certain designated leagues of the shore can reasonably mean that the 'boundary line' is marked by the islands. There is difficulty in that construction. Yet it is for me no more difficult than the method we use to give Texas a territorial claim in the same belt. All the States on the Gulf should be given the same benefit of the doubts that have been resolved in favor of Texas. The claim of Florida, as shown in United States v. State of Florida, 363 U.S. 121, 80 S.Ct. 1026, is fully established by the standard I would ask Texas to meet. If we are to relax the standard of proof for the benefit of Texas, we should do so for all these claimants. In that posture, the claims of each of the other Gulf States which have gone 'long-unchallenged,' as shown by Mr. Justice Black, are as clear as those of Texas.

[For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BRENNAN, MR. JUSTICE WHITTAKER and MR. JUSTICE STEWART, see post, p. 129. (363 U.S. 129, 80 S.Ct. 1030.)]