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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 mudflats 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 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 some one 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 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 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 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, 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, it 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 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 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, 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 Hallett's case, 16 Peters, 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 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.