CHAPTER IV

JURISDICTION OF STATES

SECTION 1.-IN GENERAL

CALDWELL v. VANVLISSENGEN.

SAME v. VERBECK.

SAME v. ROLFE.

(Court of Chancery, 1851. 9 Hare. 415.)

These were motions on the part of the plaintiffs in three several causes, for injunctions to restrain the respective defendants from using or exercising, within the limits of that part of the United Kingdom called England, the dominion of Wales, and the town of Berwick-uponTweed, including the seas, rivers and havens thereof, the invention of James Lowe, or any mode of process for the propulsion of vessels. merely colourably differing therefrom, and from using or employing, or permitting to be used and employed, within the limits aforesaid, any vessel fitted or provided with a propeller constructed and applied, without the license of the plaintiffs, according to the form and mode respectively described in the specification of James Lowe's patent, or merely colourably differing therefrom, and particularly from permitting certain vessels mentioned in the several notices of motion, or any other vessel or vessels within the limits aforesaid, under the command or control of the defendants, and fitted or provided with a propeller or propellers constructed and applied, without the license of the plaintiffs, according to the form and mode aforesaid, or merely colourably differing therefrom, to proceed on any voyage or voyages.

The plaintiffs were the assignees of James Lowe's patent (which was granted in the year 1838) for a mode of propelling vessels by means of one or more curved blades, set or affixed on a revolving shaft below the water-line of the vessel, and running from stem to stern of the vessel. The defendants in the two first causes were the owners of vessels called the "Burgemeester Huidekoper" and "Stad Dordrecht," trading between Holland and this country; and the defendant in the third cause was or had been the captain of a vessel called the "Fyenoord," engaged in the same trade. * *

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1

The VICE-CHANCELLOR [Sir G. J. TURNER]. *

It was in

1 The statement of facts is abridged and part of the opinion is omitted.

sisted, on the part of the defendants, that there was in each of these cases a sufficient ground for the interference of the Court being withheld. * * * It is to be observed that in none of these cases is it attempted to be denied, on the part of the defendants, that the screw propellers used in their respective vessels fall within the invention claimed by this patent; and, after anxiously considering the case, I am of opinion that I cannot withhold these injunctions upon the grounds which are stated.

I take the rule to be universal that foreigners are in all cases subject to the laws of the country in which they may happen to be; and if in any case, when they are out of their own country, their rights are regulated and governed by their own laws, I take it to be not by force of those laws themselves, but by the law of the country in which they may be adopting those laws as part of their own law for the purpose of determining such rights. Mr. Justice Story, in his treatise on the Conflict of Laws, addressing himself to this subject (s. 541), says: "In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate over them, it would seem clear, upon general principles of international law, that such a right does exist, and the extent to which it should be exercised is a matter purely of municipal arrangement and policy. Huberus lays down the doctrine in his second axiom: 'All persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subject thereof.' Boullenois says: "That the sovereign has a right to make laws to bind foreigners in relation to their property within his domains, in relation to contracts and acts done therein, and in relation to judicial proceedings if they implead before his tribunals. And, further, that he may of strict right make laws for all foreigners who merely pass through his domains, although commonly this authority is exercised only as to matters of police.' Vattel asserts the same general doctrine, and says that foreigners are subject to the laws of a state while they reside in it" (page 789, 2d Edit. Lond.). In this country, indeed, the position of foreigners is not left to rest upon this general law, but is provided for by statute; for, by the 32 Hen. 8, c. 16, s. 9, it is enacted: "That every alien and stranger born out of the King's obeisance, not being denizen, which now or hereafter shall come in or to this realm or elsewhere within the King's dominions shall, after the 1st of September next coming, be bounden by and unto the laws and statutes of this realm, and to all and singular the contents of the same." Natural justice, indeed, seems to require that this should be the case: when countries extend to foreigners the protection of their laws they may well require obedience to those laws as the price of that protection. These defendants, therefore, whilst in this country, must, I think, be subject to its laws.

We must consider, then, what is the effect of this grant? It purports to give to the grantee, his executors, administrators and assigns, special license, full power, sole privilege and authority, that he, his executors, administrators and assigns, and every of them, by himself and themselves, or by his and their deputy and deputies, servants or agents, or such others as he, his executors, administrators or assigns shall at any time agree with, and no others, from time to time, and at all times thereafter, during the term of years therein expressed, lawfully to make, use, exercise and vend his said invention, within that part of the United Kingdom of Great Britain and Ireland called England, the dominion of Wales, and the town of Berwick-upon-Tweed. And undoubtedly this grant gives to the grantee a right of action against per sons who infringe upon the sole and exclusive right purported to be granted by it. Foreigners coming into this country are, as I apprehend, subject to actions for injuries done by them whilst here to the subjects of the Crown. Why then are they not to be subject to actions for the injury done by their infringing upon the sole and exclusive right, which I have shewn to be granted in conformity with the laws and constitution of this country? And if they are subject to such actions, why is not the power of this Court, which is founded upon the insufficiency of the legal remedy, to be applied against them as well as against the subjects of the Crown. It was said that the prohibitory words of the patent were addressed only to the subjects of the Crown; but these prohibitory words are in aid of the grant and not in derogation of it; and they were probably introduced at a time when the prohibition of the Crown could be enforced personally against parties who ventured to disobey it. The language of this part of the patent, therefore, does not appear to me to alter the case. *

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In the argument on the part of the defendants much was said on the hardship of this Court's interfering against them, and upon the inconveniences which would result from it; and some reference was made to the policy of this country: but it must be remembered that British ships certainly cannot use this invention without the license of the patentees, and the burthens incident to such license; and foreigners cannot, I think, justly complain that their ships are not permitted to enjoy, without license and without payment, advantages which the ships of this country cannot enjoy otherwise than under license and upon payment. It must be remembered that foreigners may take out patents in this country, and thus secure to themselves the exclusive use of their inventions within Her Majesty's dominions; and that, if they neglect to do so, they, to this extent, withhold their invention from the subjects of this country. It is to be observed also that the enforcement of the exclusive right under a patent does not take away from foreigners any privilege which they ever enjoyed in this country; for, if the invention was used by them in this country before the granting of the patent, the patent, I apprehend, would be invalid.

One principal ground of inconvenience suggested was that, if foreign ships were restrained from using this invention in these dominions, English ships might equally be restrained from using it in foreign dominions; but I think this argument resolves itself into a question of national policy, and it is for the Legislature, and not for the Courts, to deal with that question: my duty is to administer the law and not to make it.

Upon the grounds which I have referred to I think that the facts stated in the affidavits and answer do not furnish sufficient grounds for refusing these injunctions.

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THE BETSEY.

GLASS et al. v. THE BETSEY et al.

(Supreme Court of the United States, 1794. 3 Dall. 6, 1 L. Ed. 485.) Captain Pierre Arcade Johannene, the commander of a French privateer, called the Citizen Genet, having captured as prize, on the high seas, the sloop Betsey, sent the vessel into Baltimore; but upon her arrival there, the owners of the sloop and her cargo filed a libel in the District Court of Maryland, claiming restitution, because the vessel belonged to subjects of the king of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The captor filed a plea to the jurisdiction of the court, which, after argument, was allowed; the Circuit Court affirmed the decree; and thereupon, the present appeal was instituted.

The general question was-Whether under the circumstances of this case, an American Court of Admiralty, had jurisdiction to entertain the complaint, or libel of the owners, and to decree restitution of the propety? * *

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The Court, having kept the cause under advisement for several days, informed the counsel, that besides the question of jurisdiction as to the District Court, another question fairly arose upon the record,-whether

2 "The case of Caldwell v. Vlissengen, 9 Hare, 416, 9 Eng. L. and Eq. Rep. 51, and the statute passed by the British Parliament in consequence of that decision, have been referred to and relied on in the argument. The reasoning of the Vice Chancellor is certainly entitled to much respect, and it is not for this court to question the correctness of the decision, or the construction given to the statute of Henry VIII.

"But we must interpret our patent laws with reference to our own Constitution and laws and judicial decisions. And the court are of opinion that the rights of property and exclusive use granted to a patentee does not extend to a foreign vessel lawfully entering one of our ports; and that the use of such im⚫provement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a foreign port, and authorized by the laws of the country to which she belongs." Per Mr. Chief Justice Taney in Brown v. Duchesne, 19 How. 183, 198, 199, 15 L. Ed. 593 (1856).

any foreign nation had a right, without the positive stipulations of a treaty, to establish in this country, an admiralty jurisdiction for taking cognizance of prizes captured on the high seas, by its subjects or citizens, from its enemies? Though this question had not been agitated, the court deemed it of great public importance to be decided; and, meaning to decide it, they declared a desire to hear it discussed. Du Ponceau, however, observed, that the parties to the appeal did not conceive themselves interested in the point; and that the French minister had given no instructions for arguing it. Upon which JAY, Chief Justice, proceeded to deliver the following unanimous opinion.

BY THE COURT: The Judges being decidedly of opinion, that every District Court in the United States, possesses all the powers of a court of Admiralty, whether considered as an instance, or as a prize court, and that the plea of the aforesaid appellee, Pierre Arcade Johannene, to the jurisdiction of the District Court of Maryland, is insufficient: Therefore it is considered by the Supreme Court aforesaid, and now finally decreed and adjudged by the same, that the said plea be, and the same is hereby overruled and dismissed, and that the decree of the said District Court of Maryland, founded thereon, be, and the same is hereby revoked, reversed and annulled.

And the said Supreme Court being further clearly of opinion, that the District Court of Maryland aforesaid, has jurisdiction competent to inquire, and to decide, whether, in the present case, restitution ought to be made to the claimants, or either of them, in whole or in part (that is whether such restitution can be made consistently with the laws of nations and the treaties and laws of the United States) therefore it is ordered and adjudged that the said District Court of Maryland do proceed to determine upon the libel of the said Alexander S. Glass, and others, agreeably to law and right, the said plea to the jurisdiction of the said court, notwithstanding.

And the said Supreme Court being further of opinion, that no foreign power can of right institute, or erect, any court of judicature of any kind, within the jurisdiction of the United States, but such only as may be warranted by, and be in pursuance of treaties, it is therefore decreed and adjudged that the admiralty jurisdiction, which has been exercised in the United States by the Consuls of France, not being so warranted, is not of right.

It is further ordered by the said Supreme Court, that this cause be, and it is hereby, remanded to the District Court, for the Maryland District, for a final decision, and that the several parties to the same do each pay their own costs.