have thus far been quoted on this subject are, so far as we are aware, unanimously of the opinion that if either or both of the belligerents in this war have been guilty of deliberately sowing any portion of the high seas with floating mines, they have, to put it mildly, been guilty of a gross violation of the laws of civilized warfare and of International Law.

The majority of these authorities scem to be of the opinion that this is the case whether the mines were anchored or intentionally set adrift outside of the three mile limit. If neutrals were to suffer injury from mines which are accidentally adrift or which

for May 26th; Indianapolis Journal for May 27th; London Spectator and Saturday News for May 28th; Army and Navy Journal for May 28th and June 4th; Scientific American for June 4th; Bradstreets for May 28th; Public Opinion for June 2d; Berliner Nachricht for May 29th, and Die Woche for June 4th.

"If these mines were deliberately floated into waters where they would be liable to endanger neutral ships, the act was undoubtedly inadmissable." Professor Moore in New York Times for May 25th. "Mines, whether anchored or intentionally set adrift in the Strait or Gulf of PeChi-li, beyond the coast sea limit, constitute an undiscriminating attack upon neutral and belligerent alike, and are, therefore, illegitimate." Professor Woolsey in the New York Times of the same date.

"The laying of mines in the open sea beyond the territorial waters would seem, not only inhuman, but a breach of International Law and practice. . . . If it should prove true that the destruction of the Hatsuse was effected by a mine wilfully placed in the open sea, ten miles from land, the act appears to me one of wholesale murder, and its perpetrator hostis humani generis." Admiral Horsey in London and New York Times for May 24th.

"It is certain that no international usage sanctions the employment by one belligerent against another, of mines or other secret contrivances which would, without notice, render dangerous the navigation of the high seas." Professor Holland in London and New York Times for May 25, 1904.

"Every belligerent is free, I take it, to destroy his opponent's vessels in territorial waters or on the high seas by all customary means, including the use of mines. If, in an attempt to sink an enemy's ship, he accidentally destroys neutral property, there would be an unanswerable claim for damages done on the high seas. . . If, on the other hand, and I hesitate to believe it, mines are scattered broadcast in waterways outside territorial limits, neutrals who suffered would have

just cause to complain. Such conduct, if per

have floated out into the open sea in consequence of having been insecurely fastened in territorial waters, there would seem to be good ground for a claim to damages; if, on the other hand, it should be proved that the mines had been deliberately placed there. severe measures should be taken by neutral Powers.

There can, of course, be no question, in the present state of license in the use of submarine mines and torpedo boats' and other highly destructive weapons of modern warfare but that states have a right to employ these devices in their own harbors and territorial waters (as also in those of the enemy) within the three mile limit, provided that the life and property of neutrals and non-combatants be not carelessly or wantonly jeopardized. It is also probable that they have the

sisted in, would afford ground for remonstrance, and, it might be, extreme measures." Sir John Macdonnell in London and New York Times for May 25th.

"If a mine-field was deliberately created out in the open ocean by the Russians, in such a position that it was as likely to destroy a peaceful neutral as an enemy's warship, words fail to express the reprobation with which the act must be regarded. It is not only illegal, but cruel to the highest degree." Lawrence, War and Neutrality in the Far East, p. 107.

The only discordant note which we have detected in this general chorus of denunciation, at least on the part of British and American authorities. is that voiced by Admiral Sir Cyprian Bridge of the British Navy. See London and New York Times for May 31st. Officers of the British Navy are said to be opposed to any limitations upon the rights of naval warfare. Officials of our own War and Naval Departments do not seem to entertain such fears or prejudices. See New York Times for May 25th.

1 Count Mouravieff's proposal to "prohibit the use, in naval warfare, of submarine torpedo-boats or plungers, or other similar engines of destruction," and of "new explosives, or any powders more powerful than those now in use," did not meet with the approval of the majority of the States represented at The Hague Conference. See Holls, Peace Conference, p. 26 and pp. 94-95. This does not, however, affect neutral rights, as the New York Nation (May 26th) seems to think.

Neutrals using or approaching these ports or waters are entitled to notice or warning. Whether such notice or warning should be general or specific would probably depend upon circum

stances.

right to use these weapons outside of territorial 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 belligerents have an undoubted right to engage in battle on the high seas. Neutrals must take cognizance of this right and keep out of the range of the guns, as well as abstain from impeding or obstructing the movements of the vessels of either belligerent. Belligerents cannot be held responsible for injury to a neutral resulting from the latter's own carelessness or intrepidity. On the other hand the belligerent should be held to strict account for any injury to neutrals which has resulted from his (the belligerent's) own carelessness or negligence, or from the use of weapons, such as sub-marine mines, the existence 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 operations." This would be a new and hitherto unheard of restriction on the rights of neutrals 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 pur

1 Such injury, if not due to the fault of the neutral, would undoubtedly justify a claim for damages. 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 defend 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 warfare at any point within the range of modern guns. Such is not the law3 however, and a change in the law would require an interrational 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 Bynkershoek 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 dominum finitur ubi finitur armorum vis, i. e. quousque tormenta explodunter. 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 territorial waters in the course of the eighteenth

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 Wei-hai-Wei, or such acts as the blowing up of the Hatsuse ten miles southeast of Port Arthur.

coast. .

"The United States cannot admit that Spain, without a formal concurrence of other nations, can exercise exclusive sovereignty upon the open sea beyond a line of three miles from the 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.

De Domino Maris, c. 2. This work was published in 1702 or 1703. Cf. the vaguer statements of Grotius (Lib. 11. c. 3. §§ 13, 14) and Vattel (Liv. I. c. 23, §289).

century. In the course of the nineteenth century the rule of the marine league appears to have completely supplanted the principle upon which it was originally based and, instead of being extended to meet the demands of new modern guns of ever-increasing range, it remained always the same until it is now as fixed and unalterable as the laws of the Medes and the Persians in spite of the protests of publicists and the efforts of statesmen.1 There can be no doubt but that an extension of the three mile limit for all territorial purposes would be highly desirable. The marine league no longer satisfies the demands of modern requirements of defense. An extension to n.eet these requirements is certainly favored by an ever-increasing majority of modern publicists and has been strongly recommended by the Institute of International Law.

1

The majority of modern publicists appear to favor an extension of the three-mile limit, but some of them do not seem clearly to distinguish between the present three-mile rule and the principle upon which it was originally based. Amongst those who may be cited as favoring an extension of the present rule or as holding that Bynkershoek's principle is, or ought to be, the rule of International Law, are Beuntschli, §302; Fiore, §788; Calvo, I., 8356; P. Fodere, II., §§630ff; Hautefouille, I., 89, 239; Ortolan, I., c. 8; Heffter, $75; Rivier, I., Liv. III., c. 1, §10; Phillimore, Pt. III., c. 8; Hall, 841; Taylor, §247.

In 1806 the American Government attempted to obtain a recognition of a six-mile limit from England, but refused to acknowledge the validity of a claim of six miles made by Spain to the coast of Cuba in 1863. But in the following year (1864) Sec. Seward proposed a zone of five miles to the British Legation at Washington. The British Government has, however, always insisted upon the three-mile limit.

The three-mile limit has the sanction of a considerable number of State and International Acts or Conventions, e. g., the Russian Prize Rules of 1869, the British Territorial Waters Jurisdiction Act of 1878, the North Sea Fisheries Convention of 1882. the Convention of Constantinople relating to the Suez Canal of 1889. For list of treaties, see Calvo, I., p. 479.

2 The Institute of International Law, at its Paris session in 1894, after an exhaustive discussion of this question, gave a decisive majority (there was no division of opinion as to the desirability of extending the three-mile limit) in

It is highly desirable that these questions and many others, more particularly those relating to neutrality, contraband, and naval warfare, be discussed and, if possible, settled, by an International Congress or Conference before or soon after the close of the present war while the interest in such questions is still keen and the memory of its events fresh and vivid. In respect to the questions immediately under discussion in this paper, it may be said that any claims for damages which may arise should be referred to arbitration, preferably to the Hague Tribunal; but to wait until injury has actually resulted to neutral individuals or to neutral property before laying down the rule to be followed in such cases would not seem to be the part of wisdom or sound policy. Precautions should be taken in time and any evil consequences which might follow upon uncertainty as to the rule ought to be averted, if possible. In respect to the laying of submarine mines, the very least that neutral States have a right to demand is that these highly dangerous explosives be restricted to territorial or belligerent waters; or if they are placed upon the high seas for any purpose whatsoever, that they be anchored in such a way that they can not possibly become a menace to neutral vessels. In all such cases neutrals should receive due notice and the mines should be carefully removed after the special purpose for which they have been placed there has been fulfilled.

favor of a zone of six marine miles for all territorial purposes and of permitting neutral States to extend it still farther in time of war for the purpose of defending its neutrality against a belligerent Power, provided the range of cannon was not exceeded. The maritime Powers were recommended to hold an International Congress for the purpose of adopting these and other rules but no such Congress has ever been held. See Annuaire de l'Institut de Droit International for 1894-95, pp. 281-331.

The Hague Tribunal is an international court for the decision of actual disputes between nations. It has power to declare law, but not to legislate in the ordinary sense.

T

HE first point which occurs to a controversialist, pursuing this not unprofitable, if academic, theme, is: would an action. for the default chargeable against Antonio have lain at the Jew's instance? Could he possibly have appealed to the maxim-progenitor of the action on the case—Ubi jus ibi remedium; or, as we have this article in our Falladium of civil rights expressed in Coke upon Littleton, Lex non debet deficere conquerentibus in justitia exhibenda-a free translation of which is, the law wills that, in every case where a man is wronged and endamaged, he shall have a remedy?

It has been generally conceived that Shakespeare, whenever he deals with legal matters, imports English jurisprudence into his plays. We cannot reasonably impute to him such a knowledge of the more abstruse principles of law as would qualify him to determine whether or not a grievance, redress for which might be obtained from a court of justice, had an adequate basis of fact for its support. In this particular case, the comedy itself, as well as the origin of the plot, supplies evidence that the dramatist had not the temerity to bring his own country's law into request for the maintenance of his infirm position. Under that law, the plaintiff would have been rudely impaled on both horns of the prescription, ex turpi causa, ex dolo malo, oritur non actio.

Portia, immediately after her salutation by the Duke, observes to Shylock, "Of a strange nature is the suit you follow; yet in such rule that the Venetian law cannot impugn you, as you do proceed." Again, when Bassanio implores her to abate the law's rigor, she replies, "It must not be; there is no power in Venice can alter a decree established, 'twill be recorded for a precedent,

and many an error, by the same example, will rush into the State; it cannot be." She utters finally, in the speech adjudging confiscation of Shylock's wealth, and asserting his life to be at the Duke's disposal, the formula, "It is enacted by the law of Venice."

It will, doubtless, be answered that, as nobody was concerned with any law but such as might exist in Venice, Portia, as mouthpiece for the Duke, would naturally speak as she did. The writer, notwithstanding-efficacy no less distinct being attainable through an unspecific declaration believes that Shakespeare, meant to do nothing more at best than retail his understanding of the Venetian Code.

Now, it cannot be affirmed, with any certainty, that so novel a wrong as that for which Shylock demanded compensation was cognizable by a court of Venice. One would imagine that, with the moral sentiment imparted by such a centre of erudition as Padua a quarter to which every nation of the world looked for instruction-a suitor advancing a plea grounded in virulence as great as that exemplified by the Jew's claim, could hope for no relief from any forum acknowledging its influence, or espousing its ideals.

In the English Geste Romanorum, a chronicle prepared in the reign of Henry VI., there is a story, from which it has been confidently declared that Shakespeare borrowed his conception, "of a knight who loved at lady" having applied to a merchant for money, and secured a loan, on the condition "that thou make to me a charter of thine owne blood, in condicion that yf thowe kepe not the day of payment, hit shalle be lefulle to me for to draw away alle the flesh of thy body froo the bone with a sharpe sword."

This will be observed to be a much handsomer benefaction than the Shylockian penalty; but there is no means, of course, of telling whether the account records a genuine transaction. Presently, coming a suppliant to the judge for her lover, she is reminded by him that it is law of the Emperor "that whosoever bindeth him with his own proper will and consent, without any constraining, he should be served so again."

It would seem to be going pretty far to interpret such a proposition as upholding the theory that a man, as the foundation of a contract between them, may consent to his own death at the hands of another. It is one thing to affirm that a person may, by some voluntary act, relieve a fellow-being of criminality, in the matter of injury to fall upon himself, and another to maintain a civil court to be open to him, where he might enforce his right against the person licensing him to do the injury. Portia, indeed, by the judgment she delivers towards the end of the trial-scene, makes it clear that Shylock, on this very ground, never had any status as a litigant proceeding under his bond. She lays it down that "if it be proved against an alien that by direct or indirect attempts he seek the life of any citizen, the party against which he doth contrive shall seize one-half his goods, the other half comes to the privy coffers of the State, and the offender's life. lies in the mercy of the Duke only, 'gainst all other voice; in which predicament, I say, thou stand'st; for it appears by manifold proceeding that indirectly, and directly, too, thou hast contrived against the very life of the defendant." All must concede the necessity, by way of anti-climax, for a dramatic, irrevocable turning of the tables upon Shylock; and this the playwright may not have been able, by any less radical method, to achieve.

The writer leaves this branch of the speculation by tendering his opinion that the barrier to enforcement of the forfeiture inter

posed at an early stage of the trial by Portia was the sheerest puerility.

Had Shylock possessed a remedy at law, the mere incident of the shedding of blood, in pressing it, would have been treated as a condition, of necessity, before the minds of the contracting parties when the bargain was made. More than this, Portia is found to remark "this bond doth give thee here no jot of blood." Would not the true doctrine be, that, in the absence of words in the instrument prohibiting the drawing of blood, such inevitable consequence of a knife's dividing the flesh must be read into it?

The next element is the jurisdiction. Passing over the point that he united in his own person executive and judicial functions -a thing sanctioned, perhaps, by the period, but which has not been illustrated among civilized nations for many centuries-the judgment, surely, could have been avoided on the ground that the Duke, even though the fact may have been unknown to him, was guided by a partial assessor. Portia, wife of the man for whom Antonio became surety -a circumstance enough in itself to have disqualified her-goes over the matter privily with Bellario-her cousin, as we are told in the play-who had not only been apprized of her intimate concern with the business, but agreed, moreover, to be a party to the deception-if there was deception-practised on the Duke by accrediting a woman as his substitute. In the letter which Portia dispatches to the learned Doctor, she begs him, as the instructions given to her servant reveal, to vouchsafe her both his mental and sartorial furniture; "and look what notes and garments he doth give thee bring them, I pray thee, with imagin'd speed, unto the trancet, to the common ferry which trades to Venice."

He could not, in any event, have doubted that he was not treating with a member of the bar, or even one of his own sex. The