QUESTION FIVE. 83 



this point, but it may be convenient to recall the practice of 

 Ot the two parties to the treaty on the question of jurisdiction 

 over enclosed waters. 



PRACTICE OF THE UNITED STATES AS TO ENCLOSED WATERS. 



It is certain that neither at the time of the treaty, nor at any tune 

 since, would Great Britain or the United States have admitted the 

 existence of any such limitation as that which is now contended for 

 by the United States (British Counter-Case, App., pp. 18, 19, 20, 

 23,29). 



So far back as the years 1779-82 the Congress of the United States 

 passed resolutions and gave instructions, with reference to the nego- 

 tiations which were to be carried on by the commissioners, which 

 resulted in the treaty of 1783. These resolutions and instructions 

 are important as showing the opinion prevalent at- that 'time on the 

 point. Reference may be made particularly to the following portion 

 of the instructions issued in 1779 to the commissioners (British 

 Counter-Case, App., p. 23) : 



" You are therefore not to consent to any Treaty of Commerce with 

 Great Britain without an explicit stipulation on her part not to 

 molest or disturb the Inhabitants of the United States of America 

 in taking fish on the Banks of Newfoundland, and other fisheries in 

 the American Seas any where, excepting within the distance of 

 three leagues of the Shores of the Territory remaining to Great 

 Britain at the close of the war, if a nearer distance cannot be ob- 

 tained by negotiation and in the negotiation you are to exert your 

 most strenuous endeavours to obtain a nearer distance in the Gulf of 

 St. Lawrence, and particularly along the shores of Nova Scotia. As 

 to which latter we are desirous, that even the Shores may be occa- 

 sionally used for the purpose of carrying on the Fisheries by the 

 Inhabitants of these States." 



This shows that, in 1779, Congress was prepared to concede the 

 exclusive right of the British Government to the extent of three 

 leagues from the shore. 



In 1793, France seized a British vessel, the " Grange," in Delaware 



Bay, more than 3 miles from land. This bay has a width between 



its headlands of 10^ miles, and it extends in length about 30 miles 



before the distance between its shores diminishes to 6 miles. The 



United States demanded the release of the vessel on the ground that 



the seizure had been made in neutral waters, because Delaware Bay 



was United States territory. Chancellor Kent, in his " Com- 



95 mentaries " (9th Ed., Vol. I, p. 32), refers to this incident in 



the following terms: 



" The executive authority of this country, in 1793, considered the 

 whole of Delaware Bay to be within our territorial jurisdiction ; and 

 it rested its claim upon those authorities which admit that gulfs, 



