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military forces to attain her object merely indicates that, in her opinion, the employment of this means was no more than adequate to bring about the results which she desired to obtain. The fact that Russia made use of the military arm aggravates, if anything, the commission of the tort in that it accentuates the fact that she was determined to commit it even at the risk of forcing a bloody and ruinous war upon her defenseless neighbor; and merely because the commission of the tort involved the invasion of a territory over which she claimed a control of which the invasion itself affords the best proof, she can not claim exemption from liability on the ground that Mr. Shuster's departure was no more than a necessary incident to the existence of hostilities between herself and Persia. If war in truth existed which for reasons already given Russia. can not be heard to contend - it was a war conducted for the sole purpose of destroying the contract rights of American citizens; the accomplishment of an act by the use of the public forces of a state which, if brought about by the municipal authorities, would have rendered her liable to a just claim for indemnity. The greater the force employed the greater the wrong. If the United States did not choose to retaliate in kind, who shall say that this is an admission that no just ground for such a claim existed or that Russian liability remained any the less through failure to enforce it?

In answer to the suggestion that Russia's actions were directed against Mr. Shuster as a Persian official and not as a citizen of the United States, it must be admitted that it was not, in view of our generally accepted doctrine of noninterference in the internal affairs of other nations, incumbent upon the United States to support and maintain him in his official capacity as Treasurer-General of Persia. With Russia's policy toward Persia this country had and has no direct or immediate concern. Public opinion is not as yet educated up to the standard of justifying intervention by one or more states when in its or their opinion the sole object of intervention is to put a stop to what may appear the perpetration of a gross national wrong. The question of right or wrong as between nations will never be decided until it is passed upon by public opinion encouraged to repressive action by a general sanction, whether taking the form of joint coercion

directed against the offending state, or of binding decrees rendered by those selected by the nations to pass as a tribunal upon the issue of each particular case, and to sit as supreme judges of the event.

But if the United States was not authorized to take action against the exercise of Russian authority in Persia, even if the exercise of the power she chose to assume was to result in the deposition of the Treasurer-General, this country was entitled to insist that were steps to be taken to that effect, Mr. Shuster should be protected in his rights of person and property, including the right accruing from his contract with the Persian Government. In pursuance of this duty the Department dispatched a note on the first day of December, 1911, stating that it would insist on the observance of the guarantees of person and property which Mr. Shuster as an American citizen had a right to expect.

What action would have been taken, or against whom demand for reparation would have been directed is an open question, since the Persian Government at once and of its own accord arranged a settlement with Mr. Shuster and the American members of his staff. But it would seem that had not Persia acted with such promptness in the matter, the question of Russia's liability could not well have been avoided. It is not to be presumed that the Department would have advocated the propriety of pressing a claim for indemnity against Persia for damages resulting from an act committed against her earnest protests, in utter disregard of her sovereign rights, and in which she took no voluntary part. In preferring a claim against the Russian Government the Department would have had the sanction of the most elementary principles of right and justice supported by the precedent afforded by the negotiations resulting in the payment of the French indemnity in 1831, in which this country was so ably represented by Mr. Kane and his associates. On the other hand, to have refrained from presenting a demand against Russia, had the necessity therefor arisen, would have established the precedent that while this government will seek redress from a sister state for injuries resulting from a tortious act committed by that state within its own territory, it will not do so when the wrong is accomplished by means of the employment of the military arm within the confines of

a state too weak to offer effectual protest against this exercise of despotic power; and that henceforth foreign states may feel themselves at liberty to destroy with impunity contract rights vested in American citizens by virtue of agreements entered into by them with third countries with the general consent and approbation of this government and of its people.

CLEMENT L. Bouvé.

IS HUDSON BAY A CLOSED OR AN OPEN SEA?*

Many of the foremost jurisconsults of the world, representing many nations, have in the eighteenth and nineteenth centuries stated that Hudson Bay, a great North American sea, is a part of the open sea, and consequently free to the vessels of all nations for the purposes of navigation and fishing. This seems to have been a generally accepted doctrine until the close of the nineteenth century. Within recent years, however, the Dominion of Canada has set up the claim that all American vessels that enter Hudson Bay to catch fish or hunt whales must pay a license. The maintenance of such a policy would be tantamount to making of Hudson Bay a closed sea (mare clausum).

It is of course an attribute of a nation possessed of a maritime coast, that it can reserve in its territorial waters for its own subjects, the right of fishing, while in the open sea beyond its territorial waters, the subjects of all Powers have the right to catch fish equally, unless by immemorial usage, as in the case of the Ceylon pearl fisheries, a nation has obtained a prescriptive right beyond the conventional extent of territorial waters, to harvest the products of the sea.1 The best way to find out whether a pretense of sovereignty over Hudson Bay on the part of Canada is sound or not, is to examine first, what is meant by the freedom of the seas, and how that freedom arose and expanded; and second, the extent of territorial or marginal waters over which the sovereignty of nations with sea fronts extends.

* This article is the English version prepared by Mr. Balch, with variations and some additions, of an article in French, "La baie d'Hudson, est-elle une mer libre ou une mer fermee?", that he contributed at the end of last year to the Revue de Droit International et de Législation Comparée, Brussels, second series, Volume XIII, pages 539-586.

1 Vattel, Le Droit des Gens ou Principes de la loi naturelle (1775), Vol. I, p. 140; Wharton, Digest of International Law (1887), Vol. III, p. 38; Twiss, The Law of Nations (1897), Vol. I, p. 312; Rivier, Principes du Droit des Gens (1896), Vol. I, p. 243; Oppenheim, International Law (1905), Vol. I, p. 242; Fiore, Nouveau Droit International Public (1885), Vol. II, p. 88.

I.

Originally, in remote antiquity, the sea was free to all. But from the earliest historic times it was infested by pirates. Such was the case in the Cretan and Mykenean period of the Greek States, and perhaps the famous siege of Troy, as Sir Henry Sumner Maine suggests, was the result of a maritime piratical expedition. The Roman jurisconsults recognized in the civil and the public law that the sea can not be appropriated. Ulpianus 3 maintains that the sea is open by nature to everyone; and Celus says that, like the air, the sea is common to all mankind. “In a state of nature," Marcianus 5 writes, "there are things that are common to all, such are the air, running water and the sea." Nevertheless, after the fall of Carthage, the Mediterranean Sea passed more and more under the power of Rome. That great inland sea, which was the center of the ancient world, as well as parts of the ocean outside of the Pillars of Hercules, such as the British Channel, Rome dominated by means of her fleets. After the fall of the Roman Empire, when out of the chaos that prevailed in Europe for a time, new sovereignties began to arise, a movement started which extended slowly and gradually the claim to dominion over the sea, probably to insure security against piracy, until in the Middle Ages most sovereigns, whether emperors, kings, republics, towns or lesser individual potentates, laid claim to the possession, not only to more or less large parts of the land, but also of rivers, lakes and the salt water. Thus from early times the English sovereigns asserted sovereignty to a large area of the seas surrounding the shores of England, mare anglicanum circumque. Possessed of more vessels than their neighbors across the narrow seas, and so being "able to sweep the channel," as Chief Justice Cockburn in the case of The Queen v. Keyn, says, the English kings in the fourteenth century "asserted the right of sovereignty over the narrow seas.' Later they made even more extended claims. Albericus

6

2 Maine, International Law (1888), p. 77.

3 Ulpianus, L. 13, pr. D. VIII, 4, Mari quod natura omnibus patet.

Celus, L. 3. d. XLIII, 8, Maris communem usum omnibus hominibus ut aëris.

5 Marcianus, L. 2. sec. 1, D., 1, 8. De divisione rerum et qualitate. Law Reports, 2 Exchequer Division (1876), p. 174.

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