220 THE ABGUMENT OF THE UNITED STATES. 



In the evidence before this Tribunal it is shown that this instruc- 

 tion of Mr. Madison's was a part of a diplomatic negotiation, under- 

 taken for the purpose of keeping at a distance, from the shores 

 of the United States, the battleships of Great Britain, then engaged 

 in a war with France, and that the Secretary of State added in this 

 instruction : " If the distance of four leagues cannot be obtained, any 

 distance not less than one sea league may be substituted in the article. 

 It will occur to you that the stipulation against the roving and hov- 

 ering of armed ships on our coasts, so as to endanger or alarm trading 

 vessels, would acquire importance as the space entitled to immunity 

 shall be narrowed." 



The evidence also establishes that Great Britain " contended that 

 three marine miles was the greatest extent to which the pretensions 

 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." 



The result of these negotiations was the unratified treaty of 1806, 

 which provided : 



It is agreed that in all cases where one of the said high contracting 

 parties shall be engaged in war and the other shall be at peace, the 

 belligerent power shall not stop, except for the purposes hereinafter 

 mentioned, the vessels of the neutral power or the unarmed vessels 

 of other nations within five marine miles from the shore belonging 

 to the said neutral power on the American seas.* 



Chancellor Kent evidently was not aware that Great Britain had 

 refused to concur in such a proposal, and at the same time had 

 asserted that the ordinary three mile limit was the greatest extent 

 to which the pretension could then be carried. 



JUDICIAL DECISIONS. 



The Conception Bay case (Conception Bay is one of the bays on 

 the non-treaty coast of Newfoundland), L. K. 2 A. C., p. 394, was de- 

 cided on the ground that the Privy Council, as a British court, was 

 bound by the Act 59 Geo. Ill, c. 38 (1819), enacted for the purpose 

 of carrying out the terms of the treaty of 1818, and on the further 

 ground that the Act was an assertion of dominion " and had not 

 been questioned by any nation from 1819 down to 1872," and that 

 this " would be very strong in the tribunals of any nation to shew 



U. S. Counter Case, Appendix, 22. 



