belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shores as if they were on land.”

It is respectfully submitted that this extract from Grotius, in which he defines the means by which empire over a portion of the sea may be acquired and maintained by the nation possessing the adjacent territory, and the extent to which this acquisition is possible, limits the extent by the power of control.

Grotius thus aligns himself with the doctrine that the expanse of water over which territorial jurisdiction may extend is limited by the power to defend it, and Bynkershoëk later formulated this principle, and designated the means by which this control might be maintained.

This is the true position of Grotius on the question of control over portions of the sea by the possessor of the land which the body of water indents, and the far-reaching doctrine which counsel endeavours to deduce from the writings of Grotius is, I submit, without foundation.

I have cited what Grotius said and have explained it by citing from portions of his work, and I submit that the language

"provided it be not such a portion of the sea as is too large to appear part of the land-"

is not susceptible of the meaning put upon it by the distinguished counsel for Great Britain.

It would seem that it was perfectly clear that what Grotius had in mind was a body of water which was not too large, but that when looking across it, it would appear as a part of the land by reason of the fact that one could discern and distinguish objects on the other side.

One looking out upon, for one cannot see across an enormous expanse such as the so-called geographical Placentia Bay, in Newfoundland, would not certainly think that it seemed to be a part of the land.

When such bodies of water were so small that they were identified with the land, because of the ability to look across the body of water and see the opposite shore, and therefore to regard the intervening water as merely a part of the territory of the State, they were considered by Grotius as such bodies of water as would appear part of the land.

This view of Grotius was subsequently adopted into the common law of England, and later, as I have shown, was followed in the decisions of the Courts of the United States, and later was fixed by statutes in some States at double the width of the territorial zone of 3 marine miles.

The test of the power to see and discern and distinguish objects was abandoned for the fixed rule of twice the width of the 3-mile

zone.

This view is well illustrated by the statute of Massachusetts, which I have read to the Tribunal during the course of this argument, which merely, according to the decision in the case of Manchester v. Massachusetts, incorporated into the statute law of Massachusetts the rule of the common law.

Sir Robert Finlay emphasised upon several occasions, and especially at that point in his argument reported on p. 251, the fact that the principle of defence was applicable as to the extent to which merely an outside marginal belt might be considered territorial, but he added that bays stood by themselves, and were subject to different principles.

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It is submitted that neither reason nor the authorities bear out the statement of the learned counsel. I submit that this so-called marginal strip, which it is sought to distinguish from bays, constitutes, together with territorial bays belonging to any State, whether lying entirely within the 3-mile limit, or acquired by virtue of assertion of jurisdiction and acquiescence therein by other nations, the maritime jurisdiction of the State.

I have already cited the authorities sustaining this statement. I will therefore content myself with an examination of one of the authorities cited by the learned counsel in his argument.

I read from the work of G. F. de Martens, section 40:"Different opinions have been expressed upon the distance to which the rights of the masters of the shore extend. All nations of Europe to-day agree that the rule is that straits, gulfs, and the adjacent sea belong to the master of the shore, at least as far as the range of a cannon placed on the shore."

De Martens then adds, in his edition of 1821, that a number of treaties have established a more extended limit.

No distinction in principle is apparently made by De Martens between adjacent seas and gulfs or bays.

Counsel cited an extract from Burlamaqui, to be found in the report of his oral argument, at p. 252, to establish apparently that a great extent of sea might be appropriated by a State:

"With respect to these portions of the sea which are adjacent to the land, they are considered as belonging to the sovereign of the country whose coasts they wash, and the gulfs and bays belong to the people by the land of which they are enclosed. For since it is as easy for these people to take possession of and to guard these portions of the sea as any territory why should they not belong to them, and why can they not prevent others from navigating or fishing there and making use of it for themselves?"

Counsel did not read in connection with this section the following section:

"It is rather difficult to fix precisely the extent of sea which is thus considered as belonging to the sovereign of the lands which it washes.

We may say that it is reasonable to presume that it extends as far and is necessary for the security of the country and to the extent that continuous possession may be maintained. It would be absurd therefore to extend it to some hundred leagues."

It is submitted that Burlamaqui here plainly limits the extent to which possession of portions of the sea may be assumed by the power to guard them and by the extent to which "continuous possession may be maintained.”

The learned counsel for Great Britain cited Galiani on p. 253 of the report of his argument, and Azuni at p. 254 of his oral argument. The following extract from Galiani's work already referred to was read:

"It seems to me reasonable, however, that without waiting to see whether in point of fact the sovereign of the territory has constructed such a tower or battery, and of what calibre are the cannons he has set up, the distance of three miles from shore should be fixed and given once and for all as that which is surely the greatest that a ball or bomb can be driven with the force of the powder so far discovered. But in places where the land curves and opens into a bay or gulf, it is accepted among the most civilized nations to imagine a line drawn from point to point of that mainland or from the islands which project beyond the promontories of the mainland and to regard as territory all that gulf of the sea even if the distances from the middle of this to the surrounding coast should be on every side more than three miles."

I only desire to call attention in passing to the last lines of the

extract.

The quotation from Azuni, which was printed in the British Case at p. 119, and appears in the oral argument of the distinguished counsel for Great Britain, at p. 254, is:

"It is already established among polished nations, that in places where the land by its curve forms a bay or a gulf, we must suppose a line to be drawn from one point of the enclosing land to the other, or along the small islands which extend beyond the headlands of the bay, and that the whole of this bay, or gulf, is to be considered as territorial sea; even though the center may be, in some places, at a greater distance than three miles from either shore."

Counsel draws from these extracts the conclusion that although "the bay at the entrance is more than six miles wide it is to be treated as territorial water; a line is drawn across the mouth and that 739 the whole of that gulf is to be regarded as territory. It is an

express repudiation of the doctrine which it is said was accepted as established in 1818 by the negotiators of this Treaty. It had never been put forward then, and here, when Galiani has occasion to touch upon it, he writes in terms which amount to a repudiation." Counsel assumes that the passages "Even if the distances from the middle of this"-body of water-" to the surrounding coast

should be on every side more than three miles," and "even though the center"-of this body of water-" may be in some places at a greater distance than three miles from either shore" have reference to the center of the line drawn from shore to shore, and assumes that even if the center of this line be at a greater distance than 3 miles from either shore, nevertheless the bay is territorial.

I submit that the learned counsel for Great Britain has entirely misconstrued the citations from these two authors, Galiani and Azuni. What these authors plainly stated is that provided the approach to a body of water, the territory surrounding which is possessed entirely by one State, may be defended, as they express it themselves, then whatever may be the inner extent of that body of water, as stated by Galiani," even if the distances from the middle of this "--body of water-" to the surrounding coast should be on every side more than three miles," and, as stated by Azuni, "even though the center"-of this body of water-" may be at some places at a greater distance than three miles from either shore," nevertheless, the body of water is territorial.

If this were not true, why should these writers use the expressions which I have just quoted, and especially the expressions" to the surrounding coast should be on every side" and "in some places "that is, within the body of water--" at a greater distance than three miles from either shore?"

It is necessary, to a correct understanding, to read in connection with one another these extracts from Azuni's work on the maritime law of Europe. The citations are to the American edition of 1806, vol. I, pp. 221 and 222; 205 and 206; and 225. A portion of these extracts only appear in the British extract, pp. 3 to 6, inclusive.

Massé, a writer on commercial law, is cited by the distinguished counsel for Great Britain at p. 256 of the report of his oral argument.

In section 105, to be found on p. 2 of the extract submitted by counsel for Great Britain, this author clearly expresses the view that the range of cannon-shot "measures the extent of the territorial power and assigns its limits. This distance is about three miles."

Then the author goes on to say, as stated by Sir Robert Finlay :"However, in practice this logical rule is not followed. Each nation determines for itself a certain distance in the sea within which it exercises its authority and which constitutes the territorial sea for those who admit this delimitation."

The United States does not dispute that if a nation asserts jurisdiction over a body of water indenting its territory and secures the acquiescence of other States in such assertion, such water becomes a part of the territorial waters; a part of the maritime jurisdiction of that nation.

In section 106 (p. 2 of the British extract) this author states:

"Bays and gulfs are undoubtedly a part of the territorial sea, at least in case their extent is not such that it would be impossible to prevent the entry from the shore.

"Further, even when the mouth of the gulf or bay is too large to be able to be defended from the shore, they ought still, following Grotius, to be included in the territorial sea, if by their extent, as compared with that of the land into whose coasts they encroach, they may be considered as constituting a part of the territory," (citing Grotius, Book 2, Chapter 3, Section 8).

Massé commits the error of misconstruing what Grotius said in his great work as to the nature of bodies of water which might appear a part of the land, and this accounts for the position taken in the extract just read.

Again, I respectfully affirm that the facts abundantly establish the position of the United States on this Question 5, but an examination of the authorities submitted in behalf of the United States and in behalf of Great Britain will, I believe, disclose that they support the contention of the United States, and do not support the contention put forward by Great Britain.

I beg to thank the Tribunal for the very careful attention that I have received and to ask pardon for the extended time consumed to-day, but I desired to close at this session of the Tribunal.

[Whereupon, at 5.45 p. m., the Tribunal adjourned until to-morrow, Tuesday, July 12, 1910, at 10 o'clock a. m.]

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TWENTY-THIRD DAY: TUESDAY, JULY 12, 1910.

The Tribunal met at 10 o'clock a. m.

ARGUMENT OF MR. JOHN S. EWART, K. C., ON BEHALF OF GREAT BRITAIN.

MR. EWART: Mr. President and gentlemen of the Tribunal: I intend to offer to the Tribunal some contributions-I hope helpful contributions to the consideration of Questions 1, 2, 5, and 7. But as the subject of bays is now prominently in the minds of the members of the Tribunal, I think it will be advisable that I should commence with Question 5.

Upon that question, Sirs, the British Government has, during the whole controversy, had but one view. It has never seen any reason to depart from the idea that when the treaty said "three miles from bays," it meant exactly what it said-three miles from bays. In fact, the British Government has never been able to express that idea in any other language; and when they are giving their interpreta