SUPREME- JOURT.

LaSSEE, P&DMTF lN RnoR, v..Jom IIGAN ET

TORN PoLTARD _T AL..,
AL., D1FENDAiM IN ERROR.
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,-iiz.: '"that all navigable waters within the said state shall for ever re-
main 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, tb the
government of the United Statt, than it possesses over-the navigable waters
of other stat~s under thlprovisions of the Constitution.
And it leaves as much right in the state of Alabama over them. as the original
sthtes'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 thd United States, but were reserved to the states respec-
tively.; and the new siates have the same rights, sovereigntyand jurisdiction
over this subject as the original states.
The UnitedYStates 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 criated
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 df Alabama'into the unilon, 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 p'tblic lands.
The United States now hold the pu'blic lands in the new states by force of the
deeds of cession and the statutes connected with them, and not by any mimi-
cipat sovereignty which.it may'be supposed'they possess or have received by
compact ivith the new states foi that particular purpose.
That part of-the compact respecting th&'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 tothe 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 ofra boundary liine, iand dn admission, by Spain, that all
the territory-, on the American side of the line was originally within the
Unied-States. - : '
The United States have never admitted that they derived title from theSpanish
governmentto anyportiqn of territory included within the limits of Alabama;
for, by thetreaty of 1795, Spain admitted that she had no claim to any terri-
tory above the thiity-first degree of north latitude, and the 'United States de-
rived itstitle to allbelow' that degree from France, under the Louisiana
treaty.'.
It rpsults.from these principles that the right.of the United States to the public
lands, an7 the power of Congress to make- all needful rules and regulf.tions
for the sale and dispositioi' thereof, conferred iio power to'grant land in
Alabama which was below usual, high witer-mark.-at the timd Alabama was
admitted into the uni".
 JANUARY TERM, 1845. 213
Pollard's Lessee v. Hagaa et.al.

This case was brought up by writ of error from the Supreme

Court of Alabama.
It was an ejectment brought by the plaintiff-inerror in the Cir,
cuit Court (Stte 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 ea-t by 'the channel of the
river, and on the south by Government street.
The case was simflar in its character to the two case of City of
Mobile v. Emanuel et al., reported in 1 Howard, 95, and Pollard's
lessee v. Files, 2"Howard, 592. In the report of the first -of these
cases the locality of the ground and nature of the case are ex-
plained.'
In 1 Howard, 97, it is stated that the court charged the jury, that
"if the place in controversy was, subsequent to the admission of
this state ito the union, below both high and low water-mark, then
Congreshad no ight to grant 'it; and if defendants were in pos-
session--te plaintifl could *not oust them by virtue of the act of
Congress." And at page 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 (2 Howard,
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 whi6h was offered by the
defendant; bat these objections were not pressedi 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 bf.Congress, and
the patent iii pqrsuance thereof, could. give the plain no title,"
whether'the waters had receded by the labour 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 affrmed the judgment. From this last.
court the case was brought up, under the 25th-section of the Judi-
ciary Act, and .the only question was upon the correctness of the
ab6ve instructions.
Coxe, for the plaintiff in error.
Sergeant, for the defendant in error.
214 SUPREME COUPkT
Pollard's Lessee v. Hagan et al.
Coxe, for plaintiff in error, said, that the only point presented upon
the record grew out of the-charge of the court. The plaintiff.gave
in evidence a -patent from, the United States for the premises
in iquestion ; an act of Congress, July 2d, 1836, and an act of 26th,
May,- 1824.- Proof was given- that the waters of Mobie bay, at
high tide, overflowed the premises during all the time'up to 1822.
This -same title has been before the court already and confirmed,
1 Howard, 95 ; 2 Howard,. 591.
The -act 'of Congress- admitting Alabama into the union 'is in
6 Laws U. S. chap. 458, p. 380.: The 6th section contains a pro-
viso, that all nhvigable waters shall remain. public highways, &c.
Unless this sebtion prevents the land described in the jptent from
beonging to the United States- the plaintiff must recover under it.
In 14 Peters, .361, theland in question was situated just like this,
and the title was confirmed. So'in 16 Peters, 234, 245. In these
two cases there is an implied opinicp of the court upon the poiit
now under ,consideration, and the expressed opinion of one judge.
16.Peters, 262, 266. "
In' 2-Howard, 599, the point was expressly raised by the counsel
on-te other side.
If the land did not belong to the United States, it belonged to no-
body. Neither the state of Alabama nor the city of Mobile had any.
title to it. Many-lands are in the same-situation,. subject to b6 over-
flowed, and if they belong to nobody, there is an end to all improve-.
'ment:-of them, and they must remain, public fuisances.
&rgeant, for defendant in erior, stated the -following points:-
1. The plaintiff rested his casqntirely upon the act of Congress
of the 2d :lfly, 1836, and the, pltent issued under it, showing no
previous or other ,right-. The act and the patent gavehimno title
to the premises, because, -
1st. The United-States had nothing to grant or to release; the
right, if any, betvieen high and low water-mnark being in the state
of Alabama, and not in the United State's ; .and if ever'in the United
States; after Alabama became a state, "was passed .away and parted
-with by the-act of 1824.
2d: The right and title' in "and to the premises in question-were
vested in those under whom defendant claims, by *avalid grant
from Spain before the-treaty of 1803, namely, by the grant of June
9th, 1802.
3d. The grant from Spain, calling for the river as a'boundary,
maintained the same' boundary and followed the fiver.
4th. The length of the line referred to in the'grant does not limit
defendant's right, because it is not stated for the purpose of limiting
the right, but only as the then distance to the river; because it ac-
tually went -into the river and also because the call for the river
controls bot course and dsfance.
 JANUARY TERM, 184. 215
Pollard's Lessee v. Hagan et al.

2. The act of Congress could not operate as a release or confir-

mation, because there was no right or colour of right for a release
or confirmation to operate upon.
3. The right of,the defendant was saved and confirmed by the
act of 1824, so as to place it thenceforward beyond -doubt or
question.
(All of Mr. ergeant'sremarks which bear upon other points than
the one.upon -which the opinion of the court rested are omitted.)
Had the United States any-title t6 land covered by navigable
water, after the admission of Alabama into the union? Judge Catron
has decided in favour of the United States, but the court has ex-
pressed no opinion in preceding cases. The land-in question was
a part of the shore of the river when Alabama was admitted, .and
was so when the .act of 1824 passed. It was a part of the river.
What is a river? Are not its baks included? -In the langage of
courts, there are two distinct parts of a river, its shore and its chan-
nel. The -shores sometirmes extend a mile out. They may be left
bare at low tide,. but are still a part of the river, either for the pur-
poses ofnavigation or fishing. Beyond that is the channel.. The
record describes this land as being bounded by the channel of the
river. The question, whether the United States had a title- after
1817, was not decided in 14 Peters, nor in 16 Peters, nor in Pollard
v. Files. It is of little impoitance to the United States, because free.-
navigation is secured, but of great magnitude to the state. It has
been said, that if the decision be against the United States, the
shores must remain unimproved. But not so. Their improvement
requires local regulation. They are avenues to navigation, and want
a nearer guardian than the United States. Other states have the
control of similar property. The United States describe the limits
of a port in their revenue laws, and if they want a local property
they buy it. A state can manage this sort of property-better than
the United States, who have never -done any thing with it. The
question is importdnt to the new states, as involving an-attribute of
sovereignty, the want of which t makes an invidious distinction b-
tCveen the old and new states.. In 9 Porter, 577, there is an outline
of the argument upor this subject, and the authorities are cited. See
also 589, 591. Itis not'material for me to examine the power of
the King of Spain, because after the transfer. in 1803, the country
became-subject 16 the common -law and statute laws of the United
States,.except as to previous grants.
At page 596, this,, particular question is examined, and the case
in 10 Peters referred to.
It appearsm, therefore, that the Supreme Court of Alabama studied
the gubject, and there is no adverse decision in this or any State
court. On the contrary, the decision of Alabama has ben sus-
tained by this court in principle. -
A right to the shore between high and low water-mark is a sove-
 216' SUP,REME COURT.
.P.ollard's 'Lessee v. Haganet al.

reign, right, not a proprietary one. By the -treaties of 1803 and

1819 there is no cession-of river shores, Vfthoiigh. hind, fors, &c:.,-
are 'mentioned: Why? Because rivers do. notpass by grant, but
as an attribute of sovereignty. The right passes in .;peculiar man-'
*ner; it is' held in frust .for eiery individual proprietor in the state
or the United States, and requires a trustee.of great dignity. 'Rivers
must be kept open; they are hot landj which may. be sold, and the
right to them passes with a transfer of sovereigny. 16 Peters, 367i
413,410, 416..
- It follows from. this- deision,. that the rights over rivers became
severed from the rights over property. .In Pennsylvania, after the
Revolution, an act s-passed confiscating the. property of the Penn
*family; but no act was passed transferring the sovereignty of'the
state. .lThe'reason is, that no act was.necessary. .Sovereignty!trans-
ferred itself, and when this passes, the right -overrivers passes, too.
Not so with public lands. The" right which New Jersey acquired
in .16 Peters, was precis'ely the right which Alabama claims now.
There can be no' distinction, between thoie states which acquired
their independence .by force of arms and those which acquired it by
the j eaceful consent of older states' The Constitution says, the
latter must be-admitted into the union on an equal footing with. the
rest. The dissehting opinion of Judge Thompson (page 419) is not
inconsisfent -with this.
If these -positions are right, the United States'had nothing below
high water-mark. Theyrimight have reserved it in"the compact with
the state;'- The third article of the treaty"with Spain (1 Lind Laws,
57ycontaiEs such a reservation.- ,But as it. is, the- United States
have nothing in Alabama but propiietary rights. They bannot put
their foot- in- a state 'to claim jurisdiction without its consent. No"
principle is more famniliar than this, that whilst a -state hls granted a
portion of its'sovereign power to-the United States, it remains in the
enjoyment of all She-sovereignty which ithas not voluntarily parted
with. This court, though-in-expressibly valuable to the' cuntry, is
yeta court oflimited'junsdiction. In the Constitution, what power
-is given to the United-States over the subject we are now discussing?
In a territory they are sovereign, but when a state is erected a change.
occurs. A new sovereign comes in- -WVhere the po*er of taxation
occurs, -it is because it has been yielded by compact. 1 McLan's
Rep. 337, 339, 343,' 344, 354, 371, -374, 378: -
Th% case in 10 Peters, 731, New Orleans v. The United Sthtes,
sanctions the idea, that the power of which we have been spealdng
'must be held in trust; that the kings of Francehad jurdiction over
the slore, but it was a police power, and used fot'the cotnmnon
'behefit, not-as a proprietary right. If the trust be 'in the state of
Alabama, the United States cannot defeat that trust. The right of.
accretion could ndt belong to thd United State , because it belongs
to the adjacent proprietor.
 JANUAR.Y TERM, 1846. .217
Pollard's Les-see v. Hagan et al.

Coxe, in reply, insisted, that former decisions or.this court cover

this case. The nature of the ground in 'questiohlis fully-shown in
9 Porter, 580, 581; that the tide rises one and .a half' or-two feet.
In 10 Peters, 667, property similarly situited, is described, where
the water would overflow unless -'opflned by-banks. It has been
said, that the United States. cannot exercise acts of ownership over
it; but it.is concedddt6at Spain hadad'-exercised jurisdiction to
•the extent of granting it to individuals. 10 Peters, 679, 680, 681;
attorney-general's opinion,- 16 Peters, 252; 9 Porter, 591.
In 10 Peters, 662,.no question like the present was raised, as to
the power to grant, buit whether the property ever had be~n granted.
The case of New Orleans v. United States involved merely the*
-question, whether the land had been dedicated to. the pub c. It
- was like the Pittsburg and Cincinnati cases,, differing only as' to the
facts proved' to substantiafe such dedication" and the code of law
which was to govern it. TIhe citations -from Doniat (723) are de-:
sigmed merely to point out the places which belong to the public.
No question-was presented or decided, nor *as* any opinion indi-.
cated as to the points involte4 in.this controversy; .
Prior to the treaty by which the United States acquired'this terri--
tory, the 'former sovereign clainied and exercised the rights which
the Unitea1 States ha~e undertaken to exercise. But it is. saia, that-
we must show that our government could be the recipient of this
power. Suppose we cannot. Then the right must remaixin Spain,
which would be a strange result. But we say,
1. That portion of sovereign ppwer which 'is vested'in the United
States by our Constitution'and laws is unlimited.
2. The exercise of power by anydepartment or fundtionary of-the
government, a- among<and operating on ourselves, is-limited.
3. The sovereign power as a nation in its foreign intercourse is,
subject to no constitutional restraint
But it is contended, that the right to the.shore is a soveren and
political, not a proprietary right.- In what the -distinction exists,. so
far as it is 'applicable to this centroversy, has-not been explained,
- and is not easy to be understood. That there is an immense body
of lands in all our alluvial territory, from the North. iverto the Sa-
bine, including the meadows between Newark'and New-York, those
on the Delaware, the ne plantations -of Carolina and Georgia, the
marshes 'of Florida, the' swamps of Louisiana, is a matter of fact.
They are subject to periodical inundations, some daily,- some by oc-
casional freshets, some with te semi-annual rise of'waters.' Accord.,
ing to the argument on the other side, all these are to be considered
par of the -shore. How'*can. political power be said to exist
without a proprietary iight ovor imarshes where 'no' one can lye? .
It is said the'treaties -of. 1803 and1819 nowhere 'speciy rivers,
and from this the coniclusion is drawn-that theypassed as.part of the
sovereignty. It seems more probable that they-passed a& part-of
VoL. IL-28 T
218 SUPREME COURT.
- Pollard's Lessee t. Hagan et al.

the territory. Islands are mentioned, out in the ocean, under which
we hold Key West, Tortugas, &c. Why shadld they be considered
merely as incidents to sovereignty and not part of the territory?
The language of the grant is, in "full .lroperty and -sov&
treaty of 1795, with Spain, (1 Laws U. S. 264,).in de-

signating the b~undaries, speaks of them.which sepaate the terri-

toies of the contracting parties, and ektablish part of this line of
territory in the middle of a river.. Article 4th designates the middle
of the channel, or bed of the Mississippi, as the western boundary.
In this treaty, as in that of 1819, a river is the boundary, and its
i'ree navigation is secured: usingDid any one ever suppose that either
party precluded the highway, or from holding or
disposing of the itself
lands from
on the banks subject to inundaio n?
It is said that the land which was in questioii
in Martin v. Waddell,
16 Peters, 369, was similarly situated to the
inferred that it was that
present aboveit was
low
below high water, and thence it is
"coveredButwith
water-mark.
sPys, special verdict
the water," "whereindicates suchanb
the tide,noebbs thing. It
flows;"
Nor is there
flicting this thing
with any idea. inNewthe passages
Jersey, whocitedasserted
(410, 413 right con-
the 416) bus-
tained in that case, would be astonished to learn the construction
now placed upon it, denying the ight of.private property in the flats
leftebare at water,
eow or in the valuable meadows protected 'ty
banks from daily inundation, and converted into productive ploperty,
conducive equally to heasth and wealth.
In th th dthus situatewd, whioh had notbeen severed fom the
public domain, the United States had the capacity to acquire, and.
did acquire, a proprietary interest. Nor i ts to our
preougnant
constitution
out the unionor laws,
such orproperty
the principles by government.'
of 'our
is held Through-
individuals under tiyls
-sanctioned by legislative acts and judicial decisions.
The sea-shore and arms of thi sea, "like 6ther publi propertye
may be granted by the king or government.o individual proprietors."
2 Dane's Abr. 690, 691.
The Massachusetts colony act of 1691 grants numerous pieces
of flats to the proprietors of the adjoining uplands.. This was' in
strict conformity with the English law. -The soil on which the sea.
flows and ebbs, that is, between high and low water-marks, may be
parcel of a manor. Where the tide flows, it is within the jurisdic-
tion of the admiralty; where the tide ebbs, the land' may belong to
a subject. Every thing done on the land when the sea is out, shall
be tried at common law; 5 Co. 107;' Constable's. case. In New
York and-New Jersey, the 'inlets of the' sea on Long'Island and
betweeni the Passaic and Hackensac, have all been reclaimed and
converted into. meadows. When New York elaimed the entire"
jurisdiction of the North river, she never thought of claming the
 JANUARY "TERM, .1845. 219
Poiard's Lessee v.. agadT et aL.
meadows and marshes on the Jersey side, although they were covered
at every high tide by the waters of that, river.
On the Delaware, in the states of Delaware,- New, Jersey and
Pe Ivania the same law prevails.
In aryland, South Carolina, and Georgia, valuable private.
-property has'been thus reclaimed from the water.
Throughout our Western country, Ohio, :Indiana, Illinois, Mis-
souri, Louisiana, Alabama, Mississippi, no question has ever been
raised on this point until these cases firit presented it. Millions of
cr~s-are thus held. The right has been unlformly'asserted by the
United States.. It was so in the- act of 20th April, 1818, for the
sale of Fort dharlotte lands, whichgavre rise to the.-suits in Peters
and Porter. 9 Porter; 16 Peters, 250; 6 Laws -U. S. 34.
The adct of May 26th, 1824, expressly grants land of this de-
scription, and the act of July, 1836, does the same.
All the. titles under these acts are now i1 controversy. It is said
that the Ui6!ted States have little or no interest in this questions ut
their interest is of-incalculable value. See Darley's Louin'ana,.as
to the-amount of overflowed lands. ".
Th*e right has been judiciously recognised. In 16 Peters, 408,
United States v. Fitzgerald, where there Was- a claim under the pre-
emption laws. In the five different cases in which this very grant
has been disputed. , Pollard v. Kibbe, 14 Peters, 355, where the
title of both parties was presented. - So far as the piainfiffs title
appears, it was identical with that now exhibited, with the only
addition of the Spanish origin, which had been rejected.by the
board of comnissioners. The defendant's title the -samd as now.
All the objections fiow urged to the plaintiff's title were then appa.-
rent on the record. Mobile v. Esclava, 16 Peters, 234; 9 'Porter;
Mobile v. Hallett, 16 Peters,-261; Mobile v. Emanuel, 1 Howard,
95; Pollard v. Files, 2 Howard, 592.
Mr. Justice McKINLEY delivered the ,opinion of the court.
-This- case comes -before this court upon a-writ of error to the
Supreme Couij of Alabama.
An iction. of ejectment was brought by the plaintiffs against the
defendants, id th 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 ques-.
tion, and an act'.of Congress passed the 6th day of July, 1836,
confirming to themt the'-premises in the patent mentioned, together
with'aui act of Congress passed the 20th of May, 1824. Thi pre-
-mises in 'qitestionwere admitted by the defendants to be compre.
•hended within the patent; anl- there was likewise an admissio by
both parties that the land lay between, Church street -and North
Boundary' street,, in the city of Mobile ;,- and thtre the plaintifs
rested, their case2
 2.BSUPREME COURT.
iPollar'd's Lessee v. Hagan et a].-

- "The defendants; to maintain the issue on their part, introduced

a witnegs'to prove that the premises in question, between the years
1819 and 1823,.were covqr d by watex of the Mobile river at com-
.-inon high'tide;" to which evidence the plaintiffs by their counsel
obDjeted; but the court overruled the objectioni and permitted the
.evidence to" o to the jury. "It was. also iiproof, on the part of
the defendant, that at 'the date of the Spanish grait to Panton,
Leslie & Co., under which they claim,'the wattrs 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, Lesfie & Co. ; and that the waters continued to
overftow Water street, and the premises sued "for,.during alL the
lime 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 watef'mark, at the time Alabama was admitted
into-the union, then the act of Congress, and the- patent in pur-
suance thereof could giv e the.laintis no title, whether the waters
had receded by the labour, of man only, or by alluvion; to which
the-plaintiffs excepted.: Whereupo'n a verdict 'and judgment were
.rendered in favour of the defendants, and which.judgment was
afterwards affirmed ,bythe 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 q~iesdion necessary to the decision
- .of the case. before, us, and must, therefore, be. decided. And *e
now enter into its .examination with a just sense of its great im-
'portance to all the.states of th-e union, and particularly to- the new-
- ones. Although this.is the first-time we liave'been called upon to
- draw the line that separates the sovereignty and jurisdiction of the
government of theunfion, antl the tate governments, over the. sub-
ject in- controversy, many of the principles which enter 'into and.
form the -elements of the question have been settled by previous,
well considered- decision of'this. court, to which we shall have
occasion to refer in the course of this investigation..
•'The. counsel, for the plaintiffs insisted, m 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, ahd jurisdiction, over the. terri-
*t6ry ceded, and therefore h6ld the land and soil, under navigable
-water§, accordingto the laws and - usages 6f- Spaint; and by those
-1aws,and .usages' the- iights of a subject .to ,land derived-from the'
crown could hot extend beyond .high -water-mark, on navigable
waters, withouf an express grant; ,and that all alluvion belonged ,to
'-tie crown, and "might be granted by this ldfig, together with all
- '-land between highwate± and-the. chaimel of such navigable waters;-
and- by the*compact, between'the United States and Alabama, on
 JANUARY -TERM, 1845".
Pollard's'Lessee v. Hagan et aL

her admission into the union, it was agreed, that the people -of
Alabama for ever disclaimed all right or title to the'waste or unap-
propriated lands lying within the state, and that the same- shuld
remain at the sole disposal of the United Stats.; and 4.hat all the
navigable -waters within .the 'state should for ever 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 sjubj'ect to be sold 'by
them; and to give any other construction t d.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
t6e United States never held any mu'icipal sovereignty, jurisdic-
tion, or right of-soil in and to the territory, -of which Alabama or
any of .the new states .were formed;- except for temporary. pur-
poses, 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,:c eding
Louisiana.
All that part of Alabama which lies between the thirty-first and
thirty-fifth d'egree of north, latitude, was ceded by the state of
Georgia to the United. State by deed bearing -date the 24th day
of April, 1802, which is substantially; in-all its principles and- stipu-
lations, like the de d of cession executed by Virginia to the United
States, on the 1st day of March, i784, by which .she: ceded to the
United States the territory' north-'*est of the river Ohio. -Both of'
these deeds of cession stipulated, that all the'lands within the terri-
tory ceded, and not reserved or. appropriated. to other purposes,
'should be considerdd 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 Udited States, for the benefit
of said states, all the righ&fttie, and claim, as well of.soil asjuris-
diction, "uponcondition that the terriiory'so ceded' shall be laid
put and formed intq states, containing a-suitable extent of territory,
not less than 100; nor- ibre 'than 150 miles. square, or as near
thereto as circumstances will *admit: and *that the states so formed
phall be repubiheari states and- admitted members of the federal
union, having -the same, rights. of sovYereignty, freedom, and .nde-
pendence, ais the other states." And the delegates. condlude the
deed thus: "' Now know ye;'that we, the 'said Thomas Jefferson,
Samuel Hardy,' Arfhur:Lee, and James Monroej by virtue of the
-T2
 SUPREME COUR.T.
Pollard's-Lessee v. Hagan et a. .

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 dve unto the United States in Congress
assembled, for the benefit of said states, Virginia inclusive, all right,
title, a-id 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 fiorth-
west of the river, Ohio, to and for the uses and purposes, and on
.the 6onditions of the said, recited act." "
And in ihe 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 fred
inhabitants, oi-at an earlier period if- Congress shall -think itexpe-
dient, on the, same conditions and restrictions, wIth the samne pnvi,
leges, 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
north-westem territory of th&United States, which ordinance shall
in all its parts extend to the teiritory contained in the present act
of cession, that article only excepted which forbids slavery.', The
manner in -vhieh -the new states. were to be .admittpd into the
union, according to the ordinknce of .1787,.as expressed' therein,' is
.as follows:.*" And'whenever any of thd.said states shall have-sixty
thousagnd free inhabitants therein, such state shall .be admitted, by
its dblegates into the Congress of the United States, on an equal
footing'witi the original states in all respect§ whatever." Thus it
appears that the stipulations, trusts, and conditions, -are substan-
tihly the same.in both.of these deeds of cession.- and the acts of
Congress, and 9f the state legislatures in relation thereto;,are found-
,td-in thesame reasons of policy and interest,'with this exception,
however-tbe cession made'by Virginia was before' the adoption of
the Constitution of the United States, and that of Georgia, afterwards.
Taking the- le-aislative acts of -the United States, and the states of
Virginia ana deorgia, 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 i.t was the
intentioi of the parties to invest the United States :with the eminent
domain of the tountry ceded, both national and municipal, for the
purposes -of tempbrary government; and to- hold it in trust for the
performhance of the stipulations and conditions (xpresed in the
deed&of cession and, the legislative acts connected with them. To
a correct understanding of the rights, powers, and dutiei of the par-
.ties-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 -uponthemselves the' trust to hold the municipal
ieminent domain for the new states, and to invest them with it, to
 JANUARY TERM, I845.
Pollard's Lessee v. Hagan et al
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, anid for the public safety, of all the
wealth contained in the state, is called the eminent domain. It is
evident 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; by 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 ax] other state, nor.any state be formed by the
junction of two or more states or parts of states, without
as wll as of the consent
Congress."
of the legislatures of the states concerned,
When Alabama was "admitted into the union, on aniequal footing
with the original states, she succeeded to all the r.ghts of sore-
reignty,
at jurisdiction,
the 'date and eminent
of the cession, except sodomain
far as which Georgia
this right possessed
was diminished
by the public lands remaining in the possession and under the con-
trol 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 the terms of
the agreement, but the public lands. And, if an exprss stipulation
had been insetted in .the agreement, graiting the municipal right of
sovereignty and eminent domain to the Unite States, such stipula-.
tion would have been void and inoperative; because the United
States have no constitutional capacity to 'exercise municipal Juris-
diction, 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 Con-
stitution, power is given to Congress "to exercise exclusive legisla-
tion.in all cases whatsoever, over such district (not exceeding ten
miles square) as may by cession of particular states, and the accept-
ance of Congress, become the seat of govemment 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, magazini'es, 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 poweis of government, of every ddsieription,
are united in the government of the union.* Aud these are the only
cases, within the United States, in which all the powers of, govern.
ment are united in a single government, except in the cases already
 VA SUPREME COURT.
Pollard's Lessee v. Ha-gan et al.

montioned of the-temporary territorial governments, and there a lo-

cal 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 te ad-
mitted, and remain unquestioned, except so far as they'are, tempo-
rarily, deprived of contrpol 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 man-
ner affect or control the decision of the case before us. This right
*originated in voluntary surrenders, made by seyeral of the old states,
of their waste and unappropriated lands, to the United States, under
*aresolution of the old Congress, of the 6th of September, 1780, re-
commending 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 accom-
plished, the power of the United States over these lands, as proper-
ty, was to cease.
Whenever the United States shall have fully executed these trusts,
the municipal sovereignty of the new states will be complete, through-
out 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 sup-
posed they possess, orhave 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 Writhin a state. Such a power is not. only repugnant to the
Constitution, -butit is inconsistent .with the spirit and intention of"
the deeds of cession. The argument so much relied on by the coufi-
kel for the plaintiffs, that the agreementof the people inhabiting the
new states, " that they for ever .disolaim 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'eole and entire. disposition
of the United States," cannot operate as a contract between-the par-
ties, but is binding.as a law. Full power is given.to Congress "to
make all needfuibuleg and regulations respecting the territory or
other property of the United Statbs." This authorized the passage
of ill laws necessary, to. secure Ae rights of the United States to the
public lands, and to provide for their sale, and to protect them from
taxation.
And alLcbn.situtional laws are binding on the-people, in the npw
states and the old ones, whether they consentto 'be bound by them
-or not. Every constitutional act of Congress is-passed by the will*
of the people of the United States, Expres~ed throug-,their repr.e-
 JANUARY TERM, 1845. 225
Pollard's Lessee v. Hagan et al.

sentatives, on the subject-matter of the enactment; and when so

passed it becomes the supreme law of the land, and operates by its
owrn force on the subject-matter, jp whatever state or territory it may.
happen to be. The proposition, therefore, that such a law camiot
operate lipon the subject-matter of its enactment, without the express
consent of the .people of the new state -yhere 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, amount-
ed 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 att granting to the plaintiffs the
land in controversy.
And this brings us to the. examination of the quesfion, -whether
Alabama-is entitled ±o the shores of the navigable waters, and the
soils under them, within her limits. The prinqipal 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, wes 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 rightsand powerd 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 Ala-
bama from Spain, no such consequeices would result as those con- .
tended for. It cannot be admitted: that the King of Spain could, by
treaty or otherwise, impart to the United States any of his royal pre-
rogatives; and much less can it be admitted that they have capacity
to receive orpower to exercise them. Every nation acquiring ter-
ritory, by treaty or.otherwise, must hold it subject to the constitution
and laws of i6s own government, and-not according to those'of the
government, ceding it. Vat. -Law of Nutions, 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.Misissippi or Alabama, under any.treaty
with Spain, although she claimed at different period&a considerable
jortion of the temtory in both of those states. By the treaty. be-
tween the United States and Spain, signed at San Lorenzo el Real,
on the 27th of October, 1795, "The high contracting parties -eclare'
wnd-agree, that the line between the United States and East and
Wet Florida, shall be designated by a line, beginning, on the river
VOL. IH.--29
226 SUPREME COURT.
Pollard's Lessee v. Hagan-et aL
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 be-
tween Great Britain and the United States, as their southern bound-
ary, shall be the line which divides their territory' from East and
West Florida., The article does not import to be a cession of ter-
ritory, but the adjustment of a c6ntroversy 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, asti-
pulation which every sentiment of justice and of national honour
would have demanded, and whicl the United States would not
have refused. But, instead of requiring an article this effect; she
expressly stipulated to withdraw the settlements then witlin what
the treaty admits to be the territory of the United States, and for
permission to the settlers to take their property with them. "4We
think this an unequivocal acknowledgment that the occupation of
the territory by Spain wias wrongffil, and we think the opinion thus
clearly indicated was supported by the state of facts. It follows,
that S~anish grants made after the treaty of peace can have no
intrinsic validity." Henderson v. Poindexter, the 12 United
Wheat.States,
535.. by
Previous to the cession made by Georgia,
the act of Congress
Mississippi of the 7ththeofterritory
territory including April, 1798,
west ofhad
thee.stablished the
Chatahouchee
river, to the Mississippi river, above the 3 lsk degree of north lati-
tude,
to anyand below
portion of the
the Yazous
territory.river, subject to thescl'aim of Georgia
And the territory thus erected was
subjected to the ordinance of the 13th
of July, 1787, for its govern-
ment,
Laws, that
494. part of. by
it excepted
the act ofwhich
And the 1stprohibited
of March, slavery: 1 Story's
1817, having first
obtained consent of Georgia to make
within the ceded territory, Congress two states instead of one
the western part of the Mississippi territory authorized the inhabitants of
a constitution and state government, to form for themselves
" to consist of all the territry
included within the following bndaries,
to wit: Beginning on the
river Mississippi at th'e point wher
the state'of Tennessee strikes the sapi; the southern boundary line of
boundary line to the Tennessee river; thence east along the said
mouth of Bear creek; thence by a thence up the same to the
direct line, to the north-west
otner'of Washington county; thence
Mexico; thence westwardly, including due south to the-Gulf of
leagues of the shore, to the junction all the islands within six
of 'Pearl river with
Borgne; thence up said to the thirty-first degree of northLake
siver laet

tade; thence west along said degree of latitude to the Mississippi

liver; thence up the same to the beginning." 3 Story's Laws, 1620.
 JANUARY TERM, 1845. 2W
Pollard's Lessee v. Ragan et al.

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: Beginnig 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 north-west corner of Wash-
ington county; thence due south to the Gulf of Mexico; thence
eastwardly, including all the islands within six leagues ofthe shore
to the Perdido river; thence up the same to the beginning; shall,
for the purposes of temporary government, constitute a separate ter-
ritory, 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 ordinaice 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 prosgo to the 5th sec-
don 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 republi-
can, and not repugnant to the ordinance of the 13th of July, 1787,
between the states and the people of the territory north-w~st of the
Ohio river, so far as the same has been extended to the said telni-
tory [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 consti-
tution; and the state'was admitted into the union, according tothe
boundaries established when the country was erected into a territo-
rial 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 freaty, as has been already- shown.
We will now inquire whether she had any right to territory below-
 228 SUPREME COURT.
Pollard's Lessee v. -Hagan et al

the thirty-first degree of north latitude, after the treaty between

France and the United States, signed at Paris on the 30th of April,
1801, by which Louisiana was ceded to the United States. The
legislative and executive departments of the government have con-
stantly asserted the'right of the United States to this portion of the
territory under theist article of this treaty; anda series of mea-
sures 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 prdclamation, directing
the governor of the Orleans territory to take possession of the coun-
try, as far as the Perdido,.and hold it for the United States. In
April, 1812, Congress passed an act'to enlarge the limits of Louisi-
ana. This act includes part-of the country claimed by Spain, as
West Florida. And in February, 1813, the President wag. author-
ized to occupy and hold all. that tract of country called West Flo-
rida; 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 n~easures. 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 Peters, 253, the
right of the United States to this country underwent a very able and
thorough investigation. And Chief Justice Marshbll, in delivering-
the opinion of the court, said . ' After these acts of sovereign power
over the territory, in dispute, asserting the American construction
'of te treaty, by which the gomement claims it, to maintain the
opposite construction in its own courts would certainly be an ano-
maly 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 une-
quivocally assered its rights of dominion over a country of which it
is in possession,, and which it claims under a treaty; if the legisla-
ture has acted on the construction thus asserted, it is not in its own
courts that this constizction is' to be denied.". The chief justice
then discusses the validity of the grant made by the Spanish goverp-
ment, 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 iot to Spain, when the grant"
was made. The same doctrine' was maintained by this court in the
case of Garcia v. Lee, 12 Peters, 511.. 'These cases establish, le-
yond'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 jurisdictioin
over all the teiritory within her limits, subject to the common law,
 JANUARY TERM, 1845. 226
Pollard's Lessee v.Hfagan et aL
to the same extent that Georgia possessed it before she ceded it to
the United States. To maintain an-i 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 juris-
diction are not governed by the common law of England as it pre-
vailed in the colonies before-the Revolution, but as modified by our
own institutions. In the case' of Martin and others v. Waddell,
16 Peters, 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 inthat character
hold the absolute right to all their navigabl6 waters, and the soils
under them for their own common use, subject only to the rights
since surrendered by the. Constitution.". Then to Alabama belo.g
the navigable waters, and soils under them, in controversy iju 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 for ever 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 f6reig, 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 ofAlabama, 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 pre-
scribed 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
U
230 -1 SUPREME COURT.
.- Pollard's Lessee v. Hagan et al.
commerce with foreign nations, and among the several states, is
vestedin Coigress as absolutely as it would be in a single govern-
ment having in its constitution the same restrictions on the exercise
of the power as are found in the Constitution of theUnited States."
As the provision of what is called the Gompact between the United
Stites and the state of Alabama does not, by the above reasoning,
exceed the power thereby conceded to Congress over tht original
states on the same subject, no power or right -xas, by the compact,
intended to be reserved by the United Statev, nor to be grinted to
them by Alabama.
This supposed compact is,. therefore, nothing -more than a regu-
lation of commerce, to that extent, among the severl 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 soi]i
under the navigabl'e waters, for all municipal purposes, belongs ex-
clusively to the states within their respective territorial jurisdictions,
and-hey, 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 juris-
diction with which the United States have been invested by the
Cofistitution. For, although the territorial limits of Alabama have
extended all her sovereign pbwer 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 ptirsuance 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 Consftition 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 pbwer 6f 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, lffumed.
Mr. Jutice COATRON dissented.
The statute of 1836, and the patent of 'the United states founded
on it,-by which the land in controversy was granted to Win. Pol-
lard's heiis, have on several occasions heretofere reqeived the sane-
Stion of this 'court as a valid title.
I.- In.the caUse of '-Pollard's heirs v. KMbbe, 14 Peters, 353, the
 JANUARY TERM, 1845. 231
Pollard's Lessee v. Hagan et al.'

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 conside-
ration.
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 602)-" - This court held, when Pollard's title
was before it formerly, thatCongress 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 mpJority 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 pos-
session, and they now maintain it under our two judgments. It is
here for the third time.
In the mean time, 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 tide-water 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 sove-
reignty, 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 th old ones, took the high lands as well as the low,
by
the the
lowsame implication
lands; nowit successfully
and indeed is difficult toasserted here in regard to
lies. That the United States acquired in see where thecapacity
a corporate distinction
the
as well asnor
right of soil under water,doubted; of the the lends,of by
highright the treaty
with France, cannot be that soil was re-
tained and subject to grant u 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
cultvation, were in 1812 subject to overflow, and
hav in successful
now e cbeen redlaimed by levees.
It is impossible to deal with the question before us understand-
ingly, without reference to the physical geography of the delta of the
Mississippi end the country around the gulf of Mexico, where the
most valuable lands have been made anare now forating by alluvion
deposits of the floating soils brought downby the reat rivers; thep
232 SUPREME COURT.':
Pollard's Lessee v. Hagan et aL

earlier of which had become. dry lands; but the more recent were
flowed, when we acquired the country; and a-re 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,
atthe first, strike my mind as a startling novelty; nor have I been en-
abled 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 unsus-
pected, 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 beforeus 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, wherethere is doubt, and a conflict
suggested, the political departments, state and federal, should settle
the matter-by leoislation: by this means private owners could be pro-
vided for and confusion avoided; but no-state complains, nor has
any one ever'complained, of the infraction of her political and sove-
reign rights by the United States, or by their agents, i the execution
of the great trust imposed on the latter to dispose of the public do-
main for the common benefit;- on the contrary, we are called on by
a mere trespasser in the midst'of a city, to assert and mintain this
sovereign right for his individual protection, in sanctioii of the tres-
pass.
But as already stated, the United States may be an owner of pro-
perty in a state, ag well as another state, or a private corporation, or
an individual 'may: That the proprietory interest is large, cannot
alter the principle. I admit if the agents of the United States ob-
struct navigation, the state authorities may remove the obstructions
and punish the offenders j so the states have done for many yedrs
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 Mobie 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 North-West Terri-
tory, (now Ohio.) She owned the shores of a great lake and the
banks of navigable rivers: Can it be assumed that the admission of
 JANUARY TERM, 1845. 23
Pollard's Lessee v. Hagan et al.

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 dis-
tin uished from the right.. of private owners of lands above water, or
under the water? Yet in either ifistance, is the owner in fee de-
prived 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 Peters; of'The City of Mobile v. Eslava, 16 13Pters,
234; of the same plaintiff v. Hallet, 16 Peters, 261; of the same
plaintiff v. Emanuel, I 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 aet 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 brethern .and I fully aoTee: Can. Alabaiha
remedy the evil, and confirm the titles by legis'ation or by patent ?
I say bjr patent, because this stte, Louisiana, Mississippii 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 Con-
gress of 1836, and the patent founded on it, and also, of course,
the act of 1824i 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 abour of man or'by nataral alluvion; - And this charge is de-
clared to have been proper, by a majority of this court.
The decision founds itself on the right of navigation, and of po-
lice 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 con-
nection with navigation, but obstruct it, and must be reclaimed for
its furtherance. This is well illustrated by the recent history of Mo-
bile. When the act of 1824 was passed, granting to the corporation
the front of the city, it *as excluded from the navigable channel of
the river. ly 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 individbal enterprise, as the
'vacant space, as was apparent, must become city property; and it is
now formed into squares and streets, having wharves and ware-
houses. The squares are built up; and the fact that that part of the
city stands on land once subject to the flow 6f tide, will soon be
matter of history. At New Orleans, and at most other places front-
VOL. II.-30 -u 2
234 SUPREME COURT.
Pollard's Lessee v. i-agan et al.

ing 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 accommo-
dated to navigation and trade. To this end private ownership is
indispensable and universal; and some one must make title. If the
United States have. no power to do so, who has? I repeat, can Ala-
bama grant'the soil? She disavowed all claim and title to aid 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 con-
stitution; but Congress imposed various restrictionis, and among
others the following one: "And provided always, that the said con-
vention shall provide by an ordinance, irrevocable without the con-
sent of the United States, that the people inhabiting said territory do
agree and declare that they for ever-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 conventidn of Alabama formed a
constitution, and adopted an ordinance declaring "that this conven-
tion, for and on behalf of the people inhabiting this state, do ordain,
agree, and declare, that they for ever 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, admit-
ted Alabama as a state, on the conditions above set forth. 3 Sto-
ry'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 Con-
gress of the 2d of March, 1819, was passed, is not open to contro-
versy, as already stated; nor has it ever been 'controverted, that
whilst the territorial government existed, aly restrictions to give pri-
vate titles were imposed on the federal government; and this inre-
gard 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 inthe waste
lands, or in the unappropriatcd lands, lying within the state, ex-
cludes her from any interest 1n 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 conclu-
sion, as I understand the reasoning of the principal opinion, the doe-
 JANUARY TERM, 1845. 235
Pollard's Lessee v. Hagan et al.

trine of a majority of my brethren maihly tends. The assumption

is, that flowed lands, including mud-flats, extending to navigable
waters, are part of such waters, and clothed with a sovereign politi-
cal 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 sovereignt, the United States could not withhold it
from Alabama. On this theory, the grants all of the
the United States
plenitude are
it can
declaredstillvoid:
claim, conceding
Alabama has only the theory
to political jurisdiction over the thing;
and it must be admitted that jurisdiction cannot be the subject ofa
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 16 Peters, 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, 9286, 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 Peters, 263, reasons were added to the for-
mer opinion. And again, in the case of Emaxiuel, the question is
referred to, in an opinion found in 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 treat-
ed as settled. As the judgment was exclusively founded on the act
of 1836, (the plaintiff having adduced no other title,) it was impos-
sible to reverse the judgment of the Supreme Court of Alabama on
any other assumption an 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 if respects the amount of property mn-
volved, or the principles on which the present judgment proceeds-
rciples
. , in my judgment, as applicable to the high lands of the
United States as to the low lands and shores.