ARGUMENT OF CHARLES B. WARREN. 1065 



" contended that three marine miles was the greatest extent to which 

 the pretension could be carried by the law of nations and resisted, at 

 the instance of the Admiralty and the law officers of the Crown, in 

 Doctors' Commons, the concession, which was supposed to be made by 

 this arrangement, with great earnestness." 



This Tribunal is without the instructions of Lord Howick. Why 

 are not the instructions from Lord Howick to the British Commis- 

 sioners made a part of the documents submitted here? Where is the 

 instruction of the British Government in answer to that letter asking 

 for specific instructions ? Is it to be presumed, in the absence of that 

 instruction, that there is anything helpful in it to the contention of' 

 Great Britain before this Tribunal ? Or is it to be presumed, in the 

 absence of that instruction, that there is something in it helpful to 

 the position of the United States? In any event, the instruction 

 is solely within the control of the Government of Great 

 641 Britain, and we do not find it before this Tribunal, and the 

 ordinary rules of evidence permit certain conclusions to be 

 drawn from the fact of its being withheld. 



On the 3rd February, 1807, the Secretary of State for the United 

 States, prior to the receipt by him of the treaty, which was not 

 signed until the 31st December, 1806, it will be recalled, replying to 

 notes from the American Commissioners, observed, as appears on p. 

 98 of the Appendix to the Counter-Case of the United States : 



" It is hoped, at least, that within the extent of one league you will 

 be able to obtain an effectual prohibition of British ships of war 

 from repeating the irregularities which have so much vexed our 

 commerce and provoked the public resentment, and against which an 

 article in your instructions emphatically provides. It cannot be too 

 earnestly pressed on the British Government, that in applying the 

 remedy copied from regulations heretofore enforced against a viola- 

 tion 01 the neutral rights of British harbors and coasts, nothing more 

 will be done than what is essential to the preservation of harmony 

 between the two nations. In no case is the temptation or the facility 

 greater to ships of war for annoying our commerce, than in their 

 hovering on our coasts and about our harbors; nor is the national 

 sensibility in any case more justly or more highly excited," etc. 



It is manifest that the Secretary of State was seeking a special 

 provision for the protection of what he called the harbours of the 

 United States, and it is equally apparent, that when the treaty was 

 entered into, the only provision that was incorporated in the treaty 

 was that the maritime jurisdiction of each nation on the American 

 Continent should extend 5 marine miles from the shore; and that no 

 exception was made for bays or harbours. 



As I have stated, after the receipt of the treaty, Mr. Madison in- 

 structed the American Commissioners that it was unsatisfactory 

 without the provision regarding impressment; and in returning the 



