right to use these weapons outside of terri torial waters, i.e., on the high seas, with the specific aim of injuring or destroying, or of obstructing and impeding, the movements of an enemy fleet, provided no injury which can possibly be avoided result to neutrals.1 Centuries of practice show that belliger ents have an undoubted right to engage in battle on the high seas. Neutrals must take con-mzai'"e of this right and keep out of the range of the guns, as well as abstain гглп impeding or obstructing the movements of the vessels ot either belligerent. Belligerents cannot be held responsible for injury to a neutral resulting from the latter's own care lessness or intrepidity. On the other hand the belligerent should be held to strict ac count for any injury to neutrals which has re sulted from his (the belligerent's) own care lessness or negligence, or from the use of weapons, such as sub-marine mines, the exist ence of which, in that particular locality the neutral had no knowledge. Even if notified; neutrals could hardly be expected to take cognizance of the existence of mines on the high seas within what has loosely been termed the "theatre or zone of warlike oper ations." This would be a new and hitherto unheard of restriction on the rights of neu trals which could not be imposed without an international agreement, the enactment of which should be resisted to the utmost by all .seafaring nations.2 In respect to the argument that, owing to the increased range of modern artillery, the three mile limit ought to be increased for pur1 Such injury, ii not due to the fault of the neu tral, would undoubtedly justify a claim for dam ages. There is, I think, this difference between the rights and privileges of neutrals on the high seas and in territorial waters. On the high seas it is a right, and the presumption is in favor of the neutral; in territorial waters, it is a privilege, and the presumption is in favor of the belligerent. ' It may be that there are exceptions to the principles enunciated above. For example, a belligerent would probably have the right to de fend the anchorage of its vessels or to block up the ships of the enemy by the use of mines.
poses of defence, it may be admitted that there is much force in this contention. For the protection of besieged fortresses like Port Arthur, it would certainly seem only fair to the besieged that the three mile limit be extended in their behalf and that they be allowed every means of defence (and these include mines) permitted by the laws of war fare at any point within the range of modern guns. Such is not the law3 however, and a change in the law would require an inter national agreement or a complete change -in international practice.* The three mile limit or the marine league was originally based upon the principle first clearly enunciated by the Dutch jurist Bynkershoek5 in the early part of the eighteenth century to the effect that the sovereignty or jurisdiction of a State over the seas extends no farther than its power to defend the sea coast by force of arms extends—terrae dotninum finitiir ubi finitur armorum vis, i. e. quonsque tormenta exploduiitcr. The range of the cannon of that day seems to have been about a marine league or three geographical miles and this distance became the generally, it not universally, recognized limit of terri torial waters in the course of the eighteenth 3 But even if this were the law, it would not justify the placing of mines in the open sea, e. g,, in the neighborhood of Vci-hai-Wei, or such acts as the blowing up of the Hatsuse ten miles south east of Port Arthur. 4 " The United States cannot admit that Spain, without a formal concurrence of other nation;., can exercise exclusive sovereignty upon the open sea beyond a line of three miles from the coast. ... It cannot be admitted that the mere assertion of a sovereign, by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdiction. This right to a jurisdiction of three miles is derived, not from his own decree, but from the law of nations." Sec. Seward to M. Tessara. Dec. 16, 1862, and Aug. 10, 1863. See Wharton's Dig. I., §32, pp. 102-103. 0 De Domino Maris, с. 2. This work was pub lished in 1702 or 1703. Cf. the vaguer statements of Grotius (Lib. ii. c. 3, §§ 13,14) and Vattel (Liv. i. c. 23, §289).
