The stipulation contained in the 6th section of the act of
Congress, passed on the 2d of March, 1819, for the admission of the
State of Alabama into the union,
viz.:
"that all navigable waters within the said State shall forever
remain public highways, free to the citizens of said State, and of
the United States, without any tax, duty, impost, or toll therefor
imposed by said State,"
conveys no more power over the navigable waters of Alabama to
the Government of the United States than it possesses over the
navigable waters of other States under the provisions of the
Constitution.
And it leaves as much right in the State of Alabama over them as
the original States possess over navigable waters within their
respective limits.
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, and the new States have the
same rights, sovereignty, and jurisdiction over this subject as the
original States.
The United States never held any municipal sovereignty,
jurisdiction, or right of soil in and to the territory of which
Alabama, or any of the new States, were formed, except for
temporary purposes, and to execute the trusts created by the acts
of the Virginia and Georgia legislatures, and the deeds of cession
executed by them to the United States, and the trust created by the
treaty of the 30th April, 1803, with the French Republic ceding
Louisiana.
Upon the admission of Alabama into the union, the right of
eminent domain, which had been temporarily held by the United
States, passed to the State. Nothing remained in the United States
but the public lands.
The United States now hold the public lands in the new States by
force of the deeds of cession and the statutes connected with them,
and not by any municipal sovereignty which it may be supposed they
possess or have received by compact with the new States for that
particular purpose.
That part of the compact respecting the public lands is nothing
more than the exercise of a constitutional power vested in
Congress, and would have been binding on the people of the new
States whether they consented to be bound or not.
Under the Florida treaty, the United States did not succeed to
those rights which the King of Spain had held by virtue of his
royal prerogative, but possessed the territory subject to the
institutions and laws of its own Government.
By the acts of Congress under which Alabama was erected a
territory and a State, the common law was extended over it to the
exclusion of all other law, Spanish or French.
The treaty of 1795 was not a cession of territory by Spain to
the United States, but the recognition of a boundary line and an
admission by Spain that all the territory on the American side of
the line was originally within the United States.
The United States have never admitted that they derived title
from the Spanish Government to any portion of territory included
within the limits of Alabama, for, by the treaty of 1795, Spain
admitted that she had no claim to any territory above the
thirty-first degree of north latitude, and the United States
derived its title to all below that degree from France under the
Louisiana treaty.
It results from these principles that the right of the United
States to the public lands, and the power of Congress to make all
needful rules and regulations for the sale and disposition thereof,
conferred no power to grant land in Alabama which was below usual
high water mark at the time Alabama was admitted into the
union.
Page 44 U. S. 213
This case was brought up by writ of error from the Supreme Court
of Alabama.
It was an ejectment brought by the plaintiff in error in the
Circuit Court (State Court) of Alabama to recover a lot in the city
of Mobile, described as follows,
viz.: bounded on the
north by the south boundary of what was originally designated as
John Forbes & Co.'s canal, on the west by a lot now or lately
in the occupancy of, or claimed by, _____ Ezel, on the east by the
channel of the river, and on the south by Government Street.
The case was similar in its character to the two cases of
City of Mobile v. Emanuel et
al., reported in 1 How. 95, and
Pollard's Lessee v.
Files, 2 How. 592. In the report of the first of
these cases, the locality of the ground and nature of the case are
explained.
In
42 U. S. 1 How.
97, it is stated that the court charged the jury, that,
"if the place in controversy was, subsequent to the admission of
this State into the union, below both high and low water mark, then
Congress had no right to grant it; and if defendants were in
possession, the plaintiffs could not oust them by virtue of the act
of Congress."
And at page
42 U. S. 98, it
is remarked, that
"the Supreme Court of Alabama did not decide the first point
raised in the bill of exceptions,
viz., that Congress had
no right to grant the land to the city of Mobile."
In the case of
Pollard's lessee v. Files, it is
remarked (
43 U. S. 2 How.
601) that
"the arguments of both counsel as to the right of the state of
Alabama over navigable water in virtue of her sovereignty, are
omitted, because the opinion of the court does not touch upon that
point."
In the present case, there were objections made upon the trial
below to the admission of certain evidence which was offered by the
defendant; but these objections were not pressed, and the whole
argument turned upon the correctness of the charge of the court,
which was as follows:
"That if they believed that the premises sued for were below
usual high water mark, at the time the state of Alabama was
admitted into the union, then the act of Congress, and the patent
in pursuance thereof, could give the plaintiff no title, whether
the waters had receded by the labor of man only, or by alluvion; to
which plaintiff excepted, and the court signs and seals this bill
of exceptions."
Under these instructions the jury found for the defendant, and
the Supreme Court of Alabama affirmed the judgment. From this last
court the case was brought up, under the 25th section of the
Judiciary Act, and the only question was upon the correctness of
the above instructions.
Page 44 U. S. 219
MR. JUSTICE McKINLEY delivered the opinion of the Court.
This case comes before this Court upon a writ of error to the
Supreme Court of Alabama.
An action of ejectment was brought by the plaintiffs against the
defendants, in the Circuit Court of Mobile county, in said state;
and upon the trial, to support their action,
"the plaintiffs read in evidence a patent from the United States
for the premises in question, and an act of Congress passed the 6th
day of July, 1836, confirming to them the premises in the patent
mentioned, together with an act of Congress passed the 20th of May,
1824. The premises in question were admitted by the defendants to
be comprehended within the patent; and there was likewise an
admission by both parties that the land lay between Church Street
and North Boundary Street, in the City of Mobile; and there the
plaintiffs rested their case. "
Page 44 U. S. 220
"The defendants, to maintain the issue on their part, introduced
a witness to prove that the premises in question, between the years
1819 and 1823, were covered by water of the Mobile river at common
high tide,"
to which evidence the plaintiffs by their counsel objected; but
the court overruled the objection, and permitted the evidence to go
to the jury.
"It was also in proof, on the part of the defendant, that ruled
the objection, and permitted grant to Panton, Leslie & Co.,
under which they claim, the waters of the Mobile Bay, at high tide,
flowed over what is now Water Street, and over about one-third of
the lot west of Water Street, conveyed by the Spanish grant to
Panton, Leslie & Co.; and that the waters continued to overflow
Water Street, and the premises sued for, during all the time up to
1822 or 1823; to all which admissions of evidence, on part of the
defendants, the plaintiffs excepted. . . . The court charged the
jury that, if they believed the premises sued for were below usual
high water mark at the time Alabama was admitted into the Union,
then the act of Congress, and the patent in pursuance thereof,
could give the plaintiffs no title, whether the waters had receded
by the labor of man only or by alluvion, to which the plaintiffs
excepted. Whereupon a verdict and judgment were rendered in favor
of the defendants, and which judgment was afterwards affirmed by
the Supreme Court of the State."
This question has been heretofore raised, before this Court, in
cases from the same State, but they went off upon other points. As
now presented, it is the only question necessary to the decision of
the case before us, and must, therefore, be decided. And we now
enter into its examination with a just sense of its great
importance to all the states of the union, and particularly to the
new ones. Although this is the first time we have been called upon
to draw the line that separates the sovereignty and jurisdiction of
the Government of the Union and the state governments over the
subject in controversy, many of the principles which enter into and
form the elements of the question have been settled by previous,
well considered, decisions of this Court, to which we shall have
occasion to refer in the course of this investigation.
The counsel for the plaintiffs insisted in argument that the
United States derived title to that part of Alabama in which the
land in controversy lies from the King of Spain, and that they
succeeded to all his rights, powers, and jurisdiction over the
territory ceded, and therefore hold the land and soil, under
navigable waters, according to the laws and usages of Spain; and by
those laws and usages the rights of a subject to land derived from
the crown could not extend beyond high water mark, on navigable
waters, without an express grant; and that all alluvion belonged to
the crown, and might be granted by this king, together with all
land between high water and the channel of such navigable waters;
and by the compact between the United States and Alabama, on
Page 44 U. S. 221
her admission into the union, it was agreed, that the people of
Alabama forever disclaimed all right or title to the waste or
unappropriated lands lying within the State, and that the same
should remain at the sole disposal of the United States; and that
all the navigable waters within the State should forever remain
public highways, and free to the citizens of that State and the
United States, without any tax, duty, or impost, or toll therefor,
imposed by that State. That, by these articles of the compact, the
land under the navigable waters, and the public domain above high
water, were alike reserved to the United States, and alike subject
to be sold by them; and to give any other construction to these
compacts, would be to yield up to Alabama, and the other new
States, all the public lands within their limits.
We think a proper examination of this subject will show that the
United States never held any municipal sovereignty, jurisdiction,
or right of soil in and to the territory of which Alabama or any of
the new States were formed, except for temporary purposes and to
execute the trusts created by the acts of the Virginia and Georgia
legislatures, and the deeds of cession executed by them to the
United States, and the trust created by the treaty with the French
Republic of the 30th of April, 1803, ceding Louisiana.
All that part of Alabama which lies between the thirty-first and
thirty-fifth degree of north latitude was ceded by the State of
Georgia to the United States by deed bearing date the 24th day of
April, 1802, which is substantially, in all its principles and
stipulations, like the deed of cession executed by Virginia to the
United States on the 1st day of March, 1784, by which she ceded to
the United States the territory northwest of the River Ohio. Both
of these deeds of cession stipulated that all the lands within the
territory ceded, and not reserved or appropriated to other
purposes, should be considered as a common fund for the use and
benefit of all the United States, to be faithfully and
bona
fide disposed of for that purpose, and for no other use or
purpose whatever. And the statute passed by Virginia authorizing
her delegates to execute this deed, and which is recited in it,
authorizes them, in behalf of the State, by a proper deed to convey
to the United States, for the benefit of said States, all the
right, title, and claim, as well of soil as jurisdiction,
"upon condition that the territory so ceded shall be laid out
and formed into States, containing a suitable extent of territory,
not less than 100, nor more than 150 miles square, or as near
thereto as circumstances will admit: and that the States so formed
shall be republican states and admitted members of the federal
union, having the same rights of sovereignty, freedom, and
independence, as the other states."
And the delegates conclude the deed thus:
"Now know ye, that we, the said Thomas Jefferson, Samuel Hardy,
Arthur Lee, and James Monroe, by virtue of the
Page 44 U. S. 222
power and authority committed to us by the act of the said
General Assembly of Virginia before recited, and in the name and
for and on behalf of the said Commonwealth, do by these presents
convey, transfer, assign, and make over unto the United States in
Congress assembled, for the benefit of said States, Virginia
inclusive, all right, title, and claim, as well of soil as of
jurisdiction, which the said Commonwealth hath to the territory or
tract of country within the limits of the Virginia Charter,
situate, lying, and being to the northwest of the River Ohio, to
and for the uses and purposes, and on the conditions of the said
recited act."
And in the deed of cession by Georgia, it is expressly
stipulated
"That the territory thus ceded shall form a state and be
admitted as such into the union as soon as it shall contain sixty
thousand free inhabitants, or at an earlier period if Congress
shall think it expedient, on the same conditions and restrictions,
with the same privileges, and in the same manner, as is provided in
the ordinance of Congress of the 13th day of July, 1787, for the
government of the Northwestern Territory of the United States,
which ordinance shall in all its parts extend to the territory
contained in the present act of cession, that article only excepted
which forbids slavery."
The manner in which the new States were to be admitted into the
union, according to the Ordinance of 1787, as expressed therein, is
as follows:
"And whenever any of the said states shall have sixty thousand
free inhabitants therein, such state shall be admitted by its
delegates into the Congress of the United States, on an equal
footing with the original States in all respects whatever."
Thus it appears that the stipulations, trusts, and conditions,
are substantially the same in both of these deeds of cession, and
the acts of Congress, and of the State legislatures in relation
thereto, are founded in the same reasons of policy and interest,
with this exception, however -- the cession made by Virginia was
before the adoption of the Constitution of the United States, and
that of Georgia afterwards. Taking the legislative acts of the
United States, and the States of Virginia and Georgia, and their
deeds of cession to the United States, and giving to each,
separately, and to all jointly, a fair interpretation, we must come
to the conclusion that it was the intention of the parties to
invest the United States with the eminent domain of the country
ceded, both national and municipal, for the purposes of temporary
government, and to hold it in trust for the performance of the
stipulations and conditions expressed in the deeds of cession and
the legislative acts connected with them. To a correct
understanding of the rights, powers, and duties of the parties to
these contracts, it is necessary to enter into a more minute
examination of the rights of eminent domain, and the right to the
public lands. When the United States accepted the cession of the
territory, they took upon themselves the trust to hold the
municipal eminent domain for the new States, and to invest them
with it, to
Page 44 U. S. 223
the same extent, in all respects, that it was held by the States
ceding the territories.
The right which belongs to the society, or to the sovereign, of
disposing, in case of necessity, and for the public safety, of all
the wealth contained in the State, is called the eminent domain. It
is evidence that this right is, in certain cases, necessary to him
who governs, and is, consequently, a part of the empire, or
sovereign power. Vat. Law of Nations, section 244. This definition
shows that the eminent domain, although a sovereign power, does not
include all sovereign power, and this explains the sense in which
it is used in this opinion. The compact made between the United
States and the State of Georgia was sanctioned by the Constitution
of the United States; but the 3d section of the 4th article of
which it is declared that
"New States may be admitted by the Congress into this union; but
no new State shall be formed or erected within the jurisdiction of
any other State, nor any State be formed by the junction of two or
more States or parts of States, without the consent of the
legislatures of the States concerned, as well as of Congress."
When Alabama was admitted into the union, on an equal footing
with the original States, she succeeded to all the rights of
sovereignty, jurisdiction, and eminent domain which Georgia
possessed at the date of the cession, except so far as this right
was diminished by the public lands remaining in the possession and
under the control of the United States, for the temporary purposes
provided for in the deed of cession and the legislative acts
connected with it. Nothing remained to the United States, according
to the terms of the agreement, but the public lands. And, if an
express stipulation had been inserted in the agreement, granting
the municipal right of sovereignty and eminent domain to the United
States, such stipulation would have been void and inoperative,
because the United States have no constitutional capacity to
exercise municipal jurisdiction, sovereignty, or eminent domain,
within the limits of a State or elsewhere, except in the cases in
which it is expressly granted.
By the 16th clause of the 8th section of the 1st article of the
Constitution, power is given to Congress
"to exercise exclusive legislation in all cases whatsoever, over
such district (not exceeding ten miles square) as may by cession of
particular States, and the acceptance of Congress, become the seat
of government of the United States, and to exercise like authority
over all places purchased, by the consent of the legislature of the
State in which the same may be, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings."
Within the District of Columbia, and the other places purchased
and used for the purposes above mentioned, the national and
municipal powers of government, of every description, are united in
the Government of the Union. And these are the only cases within
the United States in which all the powers of government are united
in a single government, except in the cases already
Page 44 U. S. 224
mentioned of the temporary territorial governments, and there a
local government exists. The right of Alabama and every other new
State to exercise all the powers of government, which belong to and
may be exercised by the original States of the union, must be
admitted, and remain unquestioned, except so far as they are,
temporarily, deprived of control over the public lands.
We will now inquire into the nature and extent of the right of
the United States to these lands, and whether that right can in any
manner affect or control the decision of the case before us. This
right originated in voluntary surrenders, made by several of the
old States, of their waste and unappropriated lands, to the United
States, under a resolution of the old Congress, of the 6th of
September, 1780, recommending such surrender and cession, to aid in
paying the public debt, incurred by the war of the Revolution. The
object of all the parties to these contracts of cession, was to
convert the land into money for the payment of the debt, and to
erect new States over the territory thus ceded; and as soon as
these purposes could be accomplished, the power of the United
States over these lands, as property, was to cease.
Whenever the United States shall have fully executed these
trusts, the municipal sovereignty of the new States will be
complete, throughout their respective borders, and they, and the
original States, will be upon an equal footing, in all respects
whatever. We, therefore, think the United States hold the public
lands within the new States by force of the deeds of cession, and
the statutes connected with them, and not by any municipal
sovereignty which it may be supposed they possess, or have reserved
by compact with the new States, for that particular purpose. The
provision of the Constitution above referred to shows that no such
power can be exercised by the United States within a State. Such a
power is not only repugnant to the Constitution, but it is
inconsistent with the spirit and intention of the deeds of cession.
The argument so much relied on by the counsel for the plaintiffs,
that the agreement of the people inhabiting the new States
"that they forever disclaim all right and title to the waste or
unappropriated lands lying within the said territory, and that the
same shall be and remain at the sole and entire disposition of the
United States"
cannot operate as a contract between the parties, but is binding
as a law. Full power is given to Congress "to make all needful
rules and regulations respecting the territory or other property of
the United States." This authorized the passage of all laws
necessary to secure the rights of the United States to the public
lands, and to provide for their sale, and to protect them from
taxation.
And all constitutional laws are binding on the people, in the
new States and the old ones, whether they consent to be bound by
them or not. Every constitutional act of Congress is passed by the
will of the people of the United States, expressed through their
representatives,
Page 44 U. S. 225
on the subject matter of the enactment; and, when so passed, it
becomes the supreme law of the land, and operates by its own force
on the subject matter, in whatever State or territory it may happen
to be. The proposition, therefore, that such a law cannot operate
upon the subject matter of its enactment without the express
consent of the people of the new State where it may happen to be
contains its own refutation, and requires no farther examination.
The propositions submitted to the people of the Alabama territory,
for their acceptance or rejection, by the act of Congress
authorizing them to form a constitution and State government for
themselves, so far as they related to the public lands within that
territory, amounted to nothing more nor less than rules and
regulations respecting the sales and disposition of the public
lands. The supposed compact relied on by the counsel for the
plaintiffs conferred no authority, therefore, on Congress to pass
the act granting to the plaintiffs the land in controversy.
And this brings us to the examination of the question whether
Alabama is entitled to the shores of the navigable waters, and the
soils under them, within her limits. The principal argument relied
on against this right is that the United States acquired the land
in controversy from the King of Spain. Although there was no direct
reference to any particular treaty, we presume the treaty of the
22d of February, 1819, signed at Washington, was the one relied on,
and shall so consider the argument. It was insisted that the United
States had, under the treaty, succeeded to all the rights and
powers of the King of Spain and, as by the laws and usages of
Spain, the King had the right to grant to a subject the soil under
navigable waters, that therefore the United States had the right to
grant the land in controversy, and thereby the plaintiffs acquired
a complete title.
If it were true that the United States acquired the whole of
Alabama from Spain, no such consequences would result as those
contended for. It cannot be admitted that the King of Spain could,
by treaty or otherwise, impart to the United States any of his
royal prerogatives; and much less can it be admitted that they have
capacity to receive or power to exercise them. Every nation
acquiring territory, by treaty or otherwise, must hold it subject
to the constitution and laws of its own government, and not
according to those of the government ceding it. Vat. Law of
Nations, b. 1, c. 19, s. 210, 244, 245, and b. 2, c. 7, s. 80.
The United States have never claimed any part of the territory
included in the States of Mississippi or Alabama under any treaty
with Spain, although she claimed at different periods a
considerable portion of the territory in both of those States. By
the treaty between the United States and Spain signed at San
Lorenzo el Real on the 27th of October, 1795,
"The high contracting parties declare and agree that the line
between the United States and East and West Florida shall be
designated by a line beginning on the river
Page 44 U. S. 226
Mississippi at the northernmost part of the thirty-first degree
of north latitude, which from thence shall be drawn due east to the
middle of the Chatahouchee river,"
&c. This treaty declares and agrees that the line which was
described in the treaty of peace between Great Britain and the
United States as their southern boundary shall be the line which
divides their territory from East and West Florida. The article
does not import to be a cession of territory, but the adjustment of
a controversy between the two nations. It is understood as an
admission that the right was originally in the United States.
Had Spain considered herself as ceding territory, she could not
have neglected to stipulate for the property of the inhabitants, a
stipulation which every sentiment of justice and of national honor
would have demanded, and which the United States would not have
refused. But, instead of requiring an article to this effect, she
expressly stipulated to withdraw the settlements then within what
the treaty admits to be the territory of the United States, and for
permission to the settlers to take their property with them.
"We think this an unequivocal acknowledgment that the occupation
of the territory by Spain was wrongful, and we think the opinion
thus clearly indicated was supported by the State of facts. It
follows, that Spanish grants made after the treaty of peace can
have no intrinsic validity."
Henderson v.
Poindexter, 12 Wheat. 535.
Previous to the cession made by Georgia, the United States, by
the act of Congress of the 7th of April, 1798, had established the
Mississippi territory including the territory west of the
Chatahouchee river, to the Mississippi river, above the 31st degree
of north latitude, and below the Yazous river, subject to the claim
of Georgia to any portion of the territory. And the territory thus
erected was subjected to the ordinance of the 13th of July, 1787,
for its government, that part of it excepted which prohibited
slavery: 1 Story's Laws 494. And by the act of the 1st of March,
1817, having first obtained consent of Georgia to make two States
instead of one within the ceded territory, Congress authorized the
inhabitants of the western part of the Mississippi territory to
form for themselves a constitution and state government,
"to consist of all the territory included within the following
boundaries, to-wit: beginning on the River Mississippi at the point
where the southern boundary line of the State of Tennessee strikes
the same; thence east along the said boundary line to the Tennessee
river; thence up the same to the mouth of Bear Creek: thence by a
direct line, to the northwest corner of Washington County; thence
due south to the Gulf of Mexico; thence westwardly, including all
the islands within six leagues of the shore, to the junction of
Pearl River with Lake Borgne; thence up said river to the
thirty-first degree of north latitude; thence west along said
degree of latitude to the Mississippi River; thence up the same to
the beginning."
3 Story's Laws 1620.
Page 44 U. S. 227
And on the 3d of March, 1817, Congress passed an act
declaring
"That all that part of the Mississippi territory which lies
within the following boundaries, to-wit: beginning at the point
where the line of the thirty-first degree of north latitude
intersects the Perdido River; thence east to the western boundary
line of the State of Georgia; thence along said line to the
southern boundary line of the State of Tennessee; thence west,
along said boundary line, to the Tennessee River; thence up the
same to the mouth of Bear Creek; thence by a direct line to the
northwest corner of Washington County; thence due south to the Gulf
of Mexico; thence eastwardly, including all the islands within six
leagues of the shore to the Perdido River; thence up the same to
the beginning; shall, for the purposes of temporary government,
constitute a separate territory, and be called Alabama."
And by the 2d section of the same act it is enacted,
"That all offices which exist, and all laws which may be in
force when this act shall go into effect, shall continue to exist
and be in force until otherwise provided by law."
3 Story's Laws 1634-1635. And, by the 2d article of the compact
contained in the Ordinance of 1787, which was then in force in the
Mississippi territory, among other things, it was provided,
that
"The inhabitants of the said territory shall always be entitled
to the benefits of the writ of habeas corpus, and of the trial by
jury, and of judicial proceedings according to the course of the
common law."
And by the proviso to the 5th section of the act of the 2d of
March, 1819, authorizing the people of the Alabama territory to
form a constitution and State government, it is enacted
"That the constitution, when formed, shall be republican, and
not repugnant to the ordinance of the 13th of July, 1787, between
the States and the people of the territory northwest of the Ohio
River, so far as the same has been extended to the said territory
[of Alabama] by the articles of agreement between the United States
and the State of Georgia."
By these successive acts on part of the United States, the
common law has been extended to all the territory within the limits
of the State of Alabama, and therefore excluded all other law,
Spanish or French.
It was after the date of the treaty of the 22d of February,
1819, between the United States and Spain, but before its
ratification, the people of the Alabama territory were authorized
to form a constitution; and the State was admitted into the Union
according to the boundaries established when the country was
erected into a territorial government. But the United States have
never admitted that they derived title from the Spanish government
to any portion of the territory included within the limits of
Alabama. Whatever claim Spain may have asserted to the territory
above the thirty-first degree of north latitude prior to the treaty
of the 27th of October, 1795, was abandoned by that treaty, as has
been already shown. We will now inquire whether she had any right
to territory below
Page 44 U. S. 228
the thirty-first degree of north latitude, after the treaty
between France and the United States, signed at Paris on the 30th
of April, 1803, by which Louisiana was ceded to the United States.
The legislative and executive departments of the Government have
constantly asserted the right of the United States to this portion
of the territory under the 1st article of this treaty; and a series
of measures intended to maintain the right have been adopted.
Mobile was taken possession of, and erected into a collection
district, by act of the 24th of February, 1804, chap. 13 (2 Story's
Laws 914). In the year 1810, the President issued his proclamation
directing the Governor of the Orleans Territory to take possession
of the country as far as the Perdido and hold it for the United
States. In April, 1812, Congress passed an act to enlarge the
limits of Louisiana. This act includes part of the country claimed
by Spain as West Florida. And in February, 1813, the President was
authorized to occupy and hold all that tract of country called West
Florida which lies west of the river Perdido not then in the
possession of the United States. And these measures having been
followed by the erection of Mississippi Territory into a state, and
the erection of Alabama into a territory, and afterwards into a
state, in the year 1819, and extending them both over this
territory: could it be doubted that these measures were intended as
an assertion of the title of the United States to this country?
In the case of
Foster and Elam v.
Neilson, 2 Pet. 253, the right of the United States
to this country underwent a very able and thorough investigation.
And Chief Justice Marshall, in delivering the opinion of the Court,
said:
"After these acts of sovereign power over the territory in
dispute, asserting the American construction of the treaty, by
which the government claims it, to maintain the opposite
construction in its own courts would certainly be an anomaly in the
history and practice of nations. If those departments, which are
intrusted with the foreign intercourse of the nation, which assert
and maintain its interests against foreign powers, have
unequivocally asserted its rights of dominion over a country of
which it is in possession, and which it claims under a treaty; if
the legislature has acted on the construction thus asserted, it is
not in its own courts that this construction is to be denied."
The Chief Justice then discusses the validity of the grant made
by the Spanish government, after the ratification of the treaty
between the United States and France, and it is finally rejected on
the ground that the country belonged to the United States, and not
to Spain, when the grant was made. The same doctrine was maintained
by this Court in the case of
Garcia v. Lee,
12 Pet. 511. These cases establish beyond controversy the right of
the United States to the whole of this territory, under the treaty
with France.
Alabama is therefore entitled to the sovereignty and
jurisdiction over all the territory within her limits, subject to
the common law,
Page 44 U. S. 229
to the same extent that Georgia possessed it before she ceded it
to the United States. To maintain any other doctrine is to deny
that Alabama has been admitted into the Union on an equal footing
with the original States, the Constitution, laws, and compact to
the contrary notwithstanding. But her rights of sovereignty and
jurisdiction are not governed by the common law of England as it
prevailed in the colonies before the Revolution, but as modified by
our own institutions. In the case of
Martin
and others v. Waddell, 16 Pet. 410, the present
CHIEF JUSTICE, in delivering the opinion of the Court, said:
"When the Revolution took place, the people of each State became
themselves sovereign, and, in that character, hold 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."
Then to Alabama belong the navigable waters, and soils under
them, in controversy in this case, subject to the rights
surrendered by the Constitution to the United States, and no
compact that might be made between her and the United States could
diminish or enlarge these rights.
The declaration, therefore, contained in the compact entered
into between them when Alabama was admitted into the union,
"that all navigable waters within the said State shall forever
remain public highways, free to the citizens of said State, and of
the United States, without any tax, duty, impost, or toll therefor,
imposed by the said State,"
would be void if inconsistent with the Constitution of the
United States. But is this provision repugnant to the Constitution?
By the 8th section of the 1st article of the Constitution, power is
granted to Congress "to regulate commerce with foreign nations, and
among the several States." If, in the exercise of this power,
Congress can impose the same restrictions upon the original States,
in relation to their navigable waters, as are imposed by this
article of the compact on the State of Alabama, then this article
is a mere regulation of commerce among the several States,
according to the Constitution, and therefore as binding on the
other States as Alabama.
In the case of
Gibbons v.
Ogden, 9 Wheat. 196, after examining the
preliminary questions respecting the regulation of commerce with
foreign nations and among the States as connected with the subject
matter there in controversy, Chief Justice Marshall said:
"We are now arrived at the inquiry: what is this power?"
"It is the power to regulate, that is, to prescribe the rule by
which commerce is to be governed. This power, like all others
vested in Congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the Constitution. These are expressed in plain terms,
and do not affect the questions which arise in this case. If, as
has been always understood, the sovereignty of Congress, though
limited to specified objects, is plenary as to those objects, the
power over
Page 44 U. S. 230
commerce with foreign nations, and among the several States, is
vested in Congress as absolutely as it would be in a single
government having in its constitution the same restrictions on the
exercise of the power as are found in the Constitution of the
United States."
As the provision of what is called the compact between the
United States and the State of Alabama does not, by the above
reasoning, exceed the power thereby conceded to Congress over the
original States on the same subject, no power or right was, by the
compact, intended to be reserved by the United States, nor to be
granted to them by Alabama.
This supposed compact is, therefore, nothing more than a
regulation of commerce, to that extent, among the several States,
and can have no controlling influence in the decision of the case
before us. This right of eminent domain over the shores and the
soils under the navigable waters, for all municipal purposes,
belongs exclusively to the States within their respective
territorial jurisdictions, and they, and they only, have the
constitutional power to exercise it. To give to the United States
the right to transfer to a citizen the title to the shores and the
soils under the navigable waters would be placing in their hands a
weapon which might be wielded greatly to the injury of State
sovereignty, and deprive the States of the power to exercise a
numerous and important class of police powers. But, in the hands of
the States, this power can never be used so as to affect the
exercise of any national right of eminent domain or jurisdiction
with which the United States have been invested by the
Constitution. For, although the territorial limits of Alabama have
extended all her sovereign power into the sea, it is there, as on
the shore, but municipal power, subject to the Constitution of the
United States, "and the laws which shall be made in pursuance
thereof."
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.
Secondly, the new States have the same rights, sovereignty, and
jurisdiction over this subject as the original States. Thirdly, the
right of the United States to the public lands, and the power of
Congress to make all needful rules and regulations for the sale and
disposition thereof, conferred no power to grant to the plaintiffs
the land in controversy in this case. The judgment of the Supreme
Court of the State of Alabama is, therefore, affirmed.
MR. JUSTICE CATRON dissented.
The statute of 1836, and the patent of the United States founded
on it, by which the land in controversy was granted to Wm.
Pollard's heirs, have on several occasions heretofore received the
sanction of this Court as a valid title.
1. In the case of
Pollard's Heirs v.
Kibbe, 14 Pet. 353, the
Page 44 U. S. 231
Supreme Court of Alabama having pronounced an opposing claim
under the act of 1824 superior to Pollard's, this Court reversed
the judgment and established the latter after the most mature
consideration.
2. In the case of
Pollard v.
Files, 2 How. 591, the precise title was again
brought before this Court and very maturely considered; it was then
said (page
43 U. S.
602):
"This Court held, when Pollard's title was before it formerly,
that Congress had the power to grant the land to him by the act of
1836; on this point, there was no difference of opinion at that
time among the judges. The difference to which the Supreme Court of
Alabama refers (in its opinion in the record) grew out of the
construction given by a majority of the Court to the act of 1824,
by which the vacant lands east of Water Street were granted to the
city of Mobile."
On this occasion, the decision of the Supreme Court of Alabama
was again reversed, and Pollard's heirs ordered to be put into
possession, and they now maintain it under our two judgments. It is
here for the third time.
In the meantime, between 1840 and 1844, a doctrine had sprung up
in the courts of Alabama (previously unheard of in any court of
justice in this country, so far as I know) assuming that all lands
temporarily flowed with tidewater were part of the eminent domain
and a sovereign right in the old States, and that the new ones,
when admitted into the Union, coming in with equal sovereign
rights, took the lands thus flowed by implication as an incident of
State sovereignty, and thereby defeated the title of the United
States, acquired either by the treaty of 1803, or by the compacts
with Virginia or Georgia. Although the assumption was new in the
courts, it was not entirely so in the political discussions of the
country; there it had been asserted that the new States coming in,
with equal rights appertaining to the old ones, took the high
lands, as well as the low, by the same implication now successfully
asserted here in regard to the low lands; and indeed it is
difficult to see where the distinction lies. That the United States
acquired in a corporate capacity the right of soil under water, as
well as of the high lands, by the treaty with France cannot be
doubted, nor that the right of soil was retained and subject to
grant up to the time Alabama was admitted as a State. Louisiana was
admitted in 1812; to her, the same rules must apply that do to
Alabama. All acquainted with the surface of the latter know that
many of the most productive lands there, and now in successful
cultivation, were in 1812 subject to overflow, and have since been
reclaimed by levees.
It is impossible to deal with the question before us
understandingly, without reference to the physical geography of the
delta of the Mississippi and the country around the gulf of Mexico,
where the most valuable lands have been made and are now forming by
alluvion deposits of the floating soils brought down by the great
rivers, the
Page 44 U. S. 232
earlier of which had become dry lands, but the more recent were
flowed when we acquired the country, and are in great part yet so;
thus situated, they have been purchased from the United States and
reclaimed -- a process that is now in daily exercise. An assumption
that mud flats and swamps once flowed, but long since reclaimed,
had passed to the new States on the theory of sovereign rights did,
at the first, strike my mind as a startling novelty, nor have I
been enabled to relieve myself from the impression, owing to the
fact in some degree, it is admitted, that for thirty years, neither
Congress or any State legislature has called in question the power
of the United States to grant the flowed lands, more than others,
the origin of title, and its continuance as to either class being
deemed the same. A right so obscure, and which has lain dormant,
and even unsuspected, for so many years, and the assertion of which
will strip so much city property and so many estates of all title
should, as I think, be concluded by long acquiescence, and
especially in courts of justice.
Again, the question before us is made to turn by a majority of
my brethren exclusively on political jurisdiction; the right of
property is a mere incident. In such a case, where there is doubt
and a conflict suggested, the political departments, State and
federal, should settle the matter by legislation; by this means
private owners could be provided for and confusion avoided; but no
State complains, nor has anyone ever complained, of the infraction
of her political and sovereign rights by the United States, or by
their agents, in the execution of the great trust imposed on the
latter to dispose of the public domain for the common benefit; on
the contrary, we are called on by a mere trespasser in the midst of
a city to assert and maintain this sovereign right for his
individual protection, in sanction of the trespass.
But, as already stated, the United States may be an owner of
property in a State, as well as another State, or a private
corporation, or an individual may; that the proprietary interest is
large cannot alter the principle. I admit, if the agents of the
United States obstruct navigation, the State authorities may remove
the obstructions and punish the offenders; so the States have done
for many years without inconvenience, or complaint.
Nor can material inconvenience result. If a front to a city or
land for another purpose is needed, Congress can be applied to for
a grant as was done by the Corporation of Mobile in 1824. If the
State where the land lies was the owner, the same course would have
to be pursued. The States and the United States are not in
hostility; the people of the one are also the people of the other;
justice and donation is alike due from each.
Connecticut was once a large proprietor in the Northwest
Territory, (now Ohio). She owned the shores of a great lake and the
banks of navigable rivers. Can it be assumed that the admission
of
Page 44 U. S. 233
Ohio defeated the title of Connecticut, and that she could not
grant? The question will not bear discussion -- and how can the
case put be distinguished from the one before us? Nay, how can
either be distinguished from the rights of private owners of lands
above water, or under the water? Yet in either instance is the
owner in fee deprived of his property on this assumption of
sovereign rights.
The front of the City of Mobile is claimed by the act of 1824,
sanctioned by this Court as a valid grant in the five cases of
Pollard v. Kibbe, 14 Pet.; of
The City
of Mobile v. Eslava, 16 Pet. 234; of the
same plaintiff v.
Hallet, 16 Pet. 261; of the
same
plaintiff v. Emanuel, 1 How. 95, and of
Pollard v.
Files, 2 How. 591. Except the grant to Pollard, the
act of 1824 confers the entire title (so far as is known to this
Court) of a most valuable portion, and a very large portion, of the
second city on the Gulf of Mexico in wealth and population. This
act is declared void in the present cause; and the previous
decisions of this Court are either directly or in effect
overthrown, and the private owners stripped of all title. On this
latter point, my brethren and I fully agree: can Alabama remedy the
evil, and confirm the titles by legislation or by patent? I say by
patent, because this State, Louisiana, Mississippi, and surely
Florida, will of necessity have to adopt some system of giving
title if it is possible to do so, aside from private legislation,
as the flowed lands are too extensive and valuable for the latter
mode of grant in all instances.
The charge of the state court to the jury was that the act of
Congress of 1836, and the patent founded on it, and also, of
course, the act of 1824, were void if the lands granted by them
were flowed at high tide when Alabama was admitted; and it was
immaterial whether the mud flat had been filled up and the water
excluded by the labor of man or by natural alluvion. And this
charge is declared to have been proper by a majority of this
Court.
The decision founds itself on the right of navigation, and of
police connected with navigation. As a practical truth, the mud
flats and other alluvion lands in the delta of the river
Mississippi and around the Gulf of Mexico formed of rich deposits,
have no connection with navigation, but obstruct it, and must be
reclaimed for its furtherance. This is well illustrated by the
recent history of Mobile. When the act of 1824 was passed granting
to the corporation the front of the city, it was excluded from the
navigable channel of the river by a mud flat, slightly covered with
water at high tide, of perhaps a thousand feet wide. This had to be
filled up before the city could prosper, and of course, by
individual enterprise, as the vacant space, as was apparent, must
become city property; and it is now formed into squares and
streets, having wharves and warehouses. The squares are built up,
and the fact that that part of the city stands on land once subject
to the flow of tide will soon be matter of history. At New Orleans,
and at most other places fronting
Page 44 U. S. 234
rivers where the tide ebbs and flows, as well as on the ocean
and great lakes, navigation is facilitated by similar means;
without their employment, few city fronts could be formed at all
accommodated to navigation and trade. To this end, private
ownership is indispensable and universal, and someone must make
title. If the United States have no power to do so, who has? I
repeat, can Alabama grant the soil? She disavowed all claim and
title to and in it as a condition on which Congress admitted her
into the union. By the act of March 2, 1819 (3 Story's Laws 1726),
the Alabama territory was authorized to call a convention and form
a State constitution, but Congress imposed various restrictions,
and among others the following one:
"And provided always that the said convention shall provide by
an ordinance, irrevocable without the consent of the United States,
that the people inhabiting said territory do agree and declare that
they forever disclaim all right and title to the waste or
unappropriated lands lying within the said territory, and that the
same shall be, and remain at the sole and entire disposition of the
United States."
On the 2d of August, 1819, the convention of Alabama formed a
constitution and adopted an ordinance declaring
"that this convention, for and on behalf of the people
inhabiting this State, do ordain, agree, and declare that they
forever disclaim all right and title to the waste or unappropriated
lands lying within this State, and that the same shall be and
remain at the sole and entire disposition of the United
States."
In addition, all the propositions offered by the act of March 2,
1819, were generally accepted without reservation.
On the 14th of December, 1819, Congress, by resolution, admitted
Alabama as a State on the conditions above set forth. 3 Story's
Laws U.S. 1804.
That the lands in contest, and granted by the acts of 1824 and
1836, were of the description of "waste or unappropriated," and
subject to the disposition of the United States, when the act of
Congress of the 2d of March, 1819, was passed is not open to
controversy, as already stated; nor has it ever been controverted
that, whilst the territorial government existed, any restrictions
to give private titles were imposed on the federal government, and
this in regard to any lands that could be granted. And I had
supposed that this right was clearly reserved by the recited
compacts, as well as on the general principle that the United
States did not part with the right of soil by enabling a State to
assume political jurisdiction. That the disclaimer of Alabama to
all right and title in the waste lands or in the unappropriated
lands lying within the State excludes her from any interest in the
soil is too manifest for debate, aside from all inference founded
on general principles. It follows, if the United States cannot
grant these lands, neither can Alabama, and no individual title to
them can ever exist. And to this conclusion, as I understand the
reasoning of the principal opinion, the doctrine
Page 44 U. S. 235
of a majority of my brethren mainly tends. The assumption is
that flowed lands, including mud flats, extending to navigable
waters are part of such waters, and clothed with a sovereign
political right in the State, not as property, but as a sovereign
incident to navigation which belongs to the political jurisdiction,
and being part of State sovereignty, the United States could not
withhold it from Alabama. On this theory, the grants of the United
States are declared void. Conceding to the theory all the plenitude
it can claim, still Alabama has only political jurisdiction over
the thing, and it must be admitted that jurisdiction cannot be the
subject of a private grant.
The present question was first brought directly before this
Court (as I then supposed, and now do) in the cause of
The City
of Mobile v. Eslava, in 1840, when my opinion was expressed on
it at some length. It will be found in
41 U. S. 16
Pet. 247, and was in answer to the opinion of the Supreme Court of
Alabama, sent up as part of the record; having been filed pursuant
to the statute of that State, found in Clay's Digest, 286, sec. 6.
My opinion, then given, has been carefully examined, and, so far as
it goes, is deemed correct (except some errors of the press), nor
will the reasons given be repeated.
In
Hallet's
Case, 16 Pet. 263, reasons were added to the former
opinion. And again, in the case of
Emanuel, the question
is referred to, in an opinion found in
42 U. S. 1 How.
101.
In
Pollard's Lessee v.
Files, 2 How. 602, the question whether Congress
had power to grant the land now in controversy was treated as
settled. As the judgment was exclusively founded on the act of 1836
(the plaintiff having adduced no other title), it was impossible to
reverse the judgment of the Supreme Court of Alabama on any other
assumption than that the act of Congress conferred a valid title. I
delivered that opinion, and it is due to myself to say that it was
the unanimous judgment of the members of the court then
present.
I have expressed these views in addition to those formerly
given, because this is deemed the most important controversy ever
brought before this Court, either as it respects the amount of
property involved or the principles on which the present judgment
proceeds -- principles, in my judgment, as applicable to the high
lands of the United States as to the low lands and shores.