ARGUMENT OF CHARLES B. WARREN. 1219 



" Gulfs and bays surrounded by the land of one and the same 

 riparian State whose entrance is so wide that it cannot be commanded 

 by coast batteries, and, further, all gulfs and bays enclosed by the 

 land of more than one riparian State, however narrow their entrance 

 may be, are non-territorial. They are parts of the Open Sea, the 

 marginal belt inside the gulfs and bays excepted. They can never be 

 appropriated, and they are in time of peace and war open to vessels 

 of all nations including men-of-war." 



Holland, " Letters to the ' Times,' " published in 1909, p. 132, et 

 seq.; United States extract, pp. 1 and 2: 



" Most authorities would, I think, agree with Admiral de Horsey 

 that the line between ' territorial waters ' and ' the high seas ' is 

 drawn by international law, if drawn by it anywhere, at a distance 

 of three miles from low-water mark. In the first place the ridicu- 

 lously wide claims made, on behalf of certain States, by mediaeval 

 jurists were cut down by Grotius to so much water as can be con- 

 trolled from the land. The Grotian formula was then worked out 

 by Bynkershoek with reference to the range of cannon ; and, finally, 

 this somewhat variable test was, before the end of the eighteenth 

 century, as we may see from the judgments of Lord Stowell, super- 

 seded by the hard-and-fast rule of the three-mile limit, which has 

 since received ample recognition in treaties, legislation, and judicial 

 decisions. 



" The subordinate question, also touched upon by the Admiral, of 

 the character to be attributed to bays, the entrance to which exceeds 

 six miles in breadth, presents more difficulty than that relating to 

 strictly coastal waters. I will only say that the Privy Council, in 

 The Direct U. 8. Cable Co. v. Anglo-American Telegraph Co. (L. R. 

 2 App. Ca. 394), carefully avoided giving an opinion as to the inter- 

 national law applicable to such bays, but decided the case before them, 

 which had arisen with reference to the Bay of Conception, in -New- 

 foundland, on the narrow ground that, as a British Court, they were 

 bound by certain assertions of jurisdiction made in British Acts of 

 Parliament. 



" The three-mile distance has, no doubt, become inadequate in 

 consequence of the increased range of modern cannon, but no other 

 can be substituted for it without express agreement of the Powers. 

 One can hardly admit the view which has been maintained, e. g., by 

 Professor de Martens, that the distance shifts automatically in ac- 

 cordance with improvements in artillery. The whole matter might 

 well be included among the questions relating to the rights and duties 

 of neutrals, for the consideration of which by a conference, to be 

 called at an early date, a wish was recorded by The Hague Confer- 

 ence of 1899." 



Inasmuch as I conceive that the counsel for Great Britain have 

 misconstrued Grotius, Galiani, Azuni and Burlamaqui, I will, at a 

 later period in the argument, take up these authorities with especial 

 reference to the interpretation put upon their statements by the coun- 

 sel for Great Britain. 



The Printed Argument of the United States has sufficiently dis- 

 cussed the work of Sir Robert Phillimore on international law, which 



