ARGUMENT OF SIR WILLIAM ROBSON. 1855 



JUDGE GRAY: Sir William, I only put this question to you for the 

 benefit of your comment : Was not the position of Mr. Warren that 

 in addition to the bays that might be claimed as territorial, that he 

 put it as a proposition of international law whether that is good or 

 not I have no opinion that in addition to the territorial bays, by 

 reason of their being not wider than 6 miles, and therefore included 

 and covered by the 3-mile limit on both sides, there were other tracts 

 of water that might be claimed as territorial under special circum- 

 stances, such as an assertion of jurisdiction by the nation whose lands 

 and shores enclose the bay, public assertion to all the world, and ac- 

 quiescence by one or more nations in that claim? I think his con- 

 tention was that that was necessary in order to establish the terri- 

 toriality of a large bay. And therefore he distinguished the Dela- 

 ware Bay incident on the ground that it is now considered a terri- 

 torial bay because of that public assertion of jurisdiction and acqui- 

 escence by two such countries as Great Britain and France. 



Xow, do you claim that, as to these larger bays, there has been such 

 an assertion of jurisdiction and such acquiescence, by silence or other- 

 wise, on the part of any one great nation, or other great nations, in 

 the claim, as would establish their territoriality on that basis? 



SIR W. ROBSON : Yes, Sir. Now, may I take Mr. Warren's argu- 

 ment, there? I am much obliged to Mr. Justice Gray for directing 

 my attention to it. When Mr. Warren came to Delaware Bay, he, 

 of course, had to meet this difficulty : that if bays were not separately 

 treated as territorial units, with all the consequences of territoriality, 

 he would lose Delaware. And so he said : " I am entitled to keep 

 Delaware, because Great Britain acquiesced and France acquiesced." 

 That is quite true. Does he suggest, then, that he had no right to 

 keep Delaware until they acquiesced? That follows from his argu- 

 ment. Here he will find he is in a vicious circle. When the ter- 

 ritoriality of Delaware was invaded by these two ships of war, 

 1122 he said: " You have no business here." That is what he said 

 to France. What would he have replied if France had said: 

 " This is open sea. It is not a United States bay, because Great Brit- 

 ain and France have not acquiesced in its being a United States 

 bay? " His answer had nothing to do with their acquiescence. It 

 was his argument that induced their acquiescence. He said : " It is 

 a bay." And he put forward an argument to show that it was a bay, 

 and that he was entitled to it by international law. He quoted 

 Grotius. He did not quote Lord Castlereagh. He did not quote Lord 

 Bathurst. He did not quote the French Minister for Foreign Affairs. 

 He quoted Grotius. And it was because he quoted international law, 

 and contended that this was his bay, that France and Great Britain 

 gave their assent. In other words, if I may take Mr. Warren back a 

 hundred years or so, the Attorney-General quoted for the United 



