INTRODUCTION cxxxvii 



ing the universal or the common use. Portions of the sea are prescribed for; so are 

 rivers flowing through contiguous states: the banks on one side may have been first 

 settled, by which the possession and property may have been acquired, or cessions 

 may have taken place upon conquests, or other events. But the general presumption 

 certainly bears strongly against such exclusive rights, and the title is a matter to be 

 established, on the part of those claiming under it, in the same manner as all other 

 legal demands are to be substantiated, by clear and competent evidence." ' 



The case before Lord Stowell is a careful analysis of the various 

 methods bywhich jurisdiction may Jae extended, and the case of Delaware 

 Bay, frequently referred to in oral argument before the Tribunal, is an 

 excellent instance of the way in which greater jurisdiction than double 

 three miles in the case of a bay may be acquired. This principle, in 

 ultimate analysis, seems to be assertion of enlarged jurisdiction and 

 acquiescence in the assertion. The reasons which lead to the assertion 

 may be many and varied. The assertion, however, is a fact to be 

 proved, like any other fact, and acquiescence is to be established; other- 

 wise unlimited assertion may trench upon the freedom of the seas. 

 The proof of assertion may be comparatively easy, because the assertion 

 is a fact whether it is established by local ordinances or diplomatic agree- 

 ment. The case of acquiescence may be more difficult. It may be 

 express, in which case there is no doubt, or it may result from inaction 

 or lack of protest, when the assertion is clearly made known and brought 

 home to the state whose acquiescence is desired. 



In 1793 the English Frigate the Grange was captured within Dela- 

 ware Bay, the entrance to which is approximately nine miles and a frac- 

 tion in width; that is to say, more than double the three mile limit. 

 The Grange was a British vessel and was captured by the French Frigate 

 L'Embuscade, and Great Britain, alleging that the neutrality of the 

 United States was violated by the capture, demanded that the United 

 States procure the return of the vessel. France complied with the 

 request of the United States and the vessel was delivered to British 

 authorities. The United States asserted jurisdiction, as appears from 

 an elaborate opinion of Mr. Randolph, then Attorney General, which 

 was transmitted to the French Minister and upon which the action of 

 the United States was based. The acquiescence of Great Britain was 

 express, because it requested the return of the vessel, and as between 

 Great Britain and the United States we thus have a clear case of asser- 

 tion followed by acquiescence, or indeed the "acquiescence" preceded 

 the assertion.^ 



It is unnecessary to consider whether nations other than Great 



• 3 Rob. Reports, 336, 339. 

 ' Opinions of the Attorneys-General, Vol. I, pp. 33-38. (Appendix, British Case, pp. 54-59.) 



