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I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm how far soever it pleases to extend it by enactments, at least so as to bind the tribunals of the country; and I admit equally freely that no statute has in plain terms, or by definite limits, so extended it.
“ But, in my judgment, no Act of Parliament was required. The proposition contended for, as I understand, is that for any act of violence committed by a foreigner upon an English subject within a few feet of low-water mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. * * *
“By a consensus of writers, without one single authority to the contrary, some portion of the coast-waters of a country is considered for some purposes to belong to the country the coasts of which they wash. * * *
“ This is established as solidly, as, by the very nature of the case, any proposition of international law can be. Strictly speaking, international law is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver, and a tribunal capable of enforcing it and coercing its transgressors.
“But there is no common law-giver to sovereign states and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this county at least per se bind the tribunals. Neither, certainly does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English courts give effect, as part of English law, to such agree
ment. * * *
“We find a number of men of education, of many different nations, most of them uninterested in maintaining any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition that the territory of a maritime country extends beyond low-water mark.
"I can hardly myself conceive stronger evidence to show that, as far as it depends on the agreement of nations, the territory of maritime countries does so extend. * * *
“If the matter were to be determined for the first time, I should not hesitate to hold that civilized nations had agreed to this prolongation of the territory of maritime states, upon the authority
of the writers who have been cited in this argument as laying down the affirmative of this proposition. * * *
“Furthermore, it has been shown that English judges have held repeatedly that these coast waters are portions of the realm. It is true that this particular point does not seem ever distinctly to have arisen. But Lord Coke, Lord Stowell, Dr. Lushington, Lord Hatherley, L. C., Erle, C. J., and Lord Wensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and deliberate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which I am unable to construe, except as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the state and Crown of England over the water and the land beneath it, extends at least so far beyond the line of low water on the English coast, as to include the place where this offense was committed. * * * The English and American text writers, and two at least of the most eminent American judges, Marshall and Story, have held the same thing.
“Further—at least in one remarkable instance—the British Parliament has declared and enacted this to be the law. In the present reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as to the property in minerals between high and low-water mark around the coasts of that county; and as to the property in minerals below lowwater mark won by an extension of workings begun above lowwater mark.
“The whole argument on the part of the Crown was founded on the proposition that the fundus maris below low-water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the disputed inines; he had worked them from land undoubtedly his own; and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier—for the Prince was first occupier, and was in occupation—the Crown must have failed. * * * Sir John Patterson *** thus expressed himself.— I am of opinion, and so decide, that the right to the minerals below low-water mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low-water mark and extended below it,' and he recommended the passing of an Act of Parliament to give practical effect to his decision, so far as it was in favor of the crown. The Act of Parliament accordingly was passed, the 21 & 22 Vict. c. 109. “We have therefore, it seems, the express and definite authority of
Parliament for the proposition that the realm does not end with lowwater mark, but that the open sea and the bed of it are part of the realm and of the territory of the sovereign. If so, it follows that British law is supreme over it, and that the law must be administered by some tribunal. It cannot, for the reasons assigned by my Brother Brett, be administered by the judges of oyer and terminer; it can be, and always could be, by the Admiralty, and if by the Admiralty, then by the Central Criminal Court."
The Court quashed the conviction.
The majority of the Court was composed of Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir R. Phillimore and Pollock, B.—Lord Coleridge, C. J., Brett, and Amphlett, J. A., Grove, Denman and Lindley, JJ., dissenting.
1 On account of the extreme length of the opinion of the Lord Chief Justice, a considerable part of it—and a part interesting and valuable--has been necessarily omitted. This is true notably of that portion consisting of the analysis of cases, and of the abstract of the opinions of text writers. It is regretted, too, that the opinions of the other judges cannot be given.
For criticisms of the judgment in this case, see Stephen's History of the Criminal Law, II., 29–42; Maine's International Law, p. 38; Judge Foster, in the Am. Law Rev., July, 1877; Walker's Science of International Law, p. 173.
In consequence of the decision in this case, an act was passed in the session of 1878 (41 and 42 Vict. c. 73), which would seem to adopt the view of the minority of the court. The preamble declares that “the rightful jurisdiction of her Majesty, her heirs and successors extends and has always extended over the open seas adjacent to the coasts of the United Kingdom, and of all other parts of her Majesty's dominions to such a distance as is necessary for the defense and security of such dominions," and that “it is expedient that all offenses committed in the open sea within a certain distance of the coasts of the United Kingdom and of all other parts of her Majesty's dominions, by whomsoever committed, should be dealt with according to law."
The act is entitled the Territorial Waters Jurisdiction Act, 1878; and enacts that, “ An offense committed by a person, whether he is or is not a subject of her Majesty, on the open sea within the territorial waters of her Majesty's dominions, is an offense within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offense may be arrested, tried and punished accordingly.
“But no proceedings under this act are to be instituted against a foreigner, without the consent and certificate of a Secretary of State, or in the case of a colony, the certificate of the Governor.
"The Territorial waters of her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of her Majesty ; and for the purpose of any offense declared by this act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from lowwater mark shall be deemed to be open sea within the territorial waters of her Majesty's dominions."
SECTION 9.-IMMUNITIES OF FOREIGN SOVEREIGNS.
VAVASSEUR v. KRUPP.
(L. R., 9 Chancery Div., 351.)
A foreign sovereign cannot be sued for the infringement of a patent. Where a foreign sovereign has his name added as defendant, in a suit against his agents, in order to be in a position to thus claim his property, he does not thereby subject himself to the jurisdiction of the court.
Josiah Vavasseur, the plaintiff in this case, had brought an action against F. Krupp, of Essen, in Germany, Alfred Longsden, his agent in England, and Ahrens & Co., described as agents for the Government of Japan, claiming an injunction and damages for the infringement of the plaintiff's patent for making shells and other projectiles. The shells in question had been made at Essen, in Germany, had been there bought for the Government of Japan, had been brought to this country and landed here in order to be put on board three ships of war which were being built here for the Government of Japan, to be used as ammunition for the guns of those ships. On the 18th of January, 1878, an injunction was, without prejudice to any question, granted, restraining the defendants and the owners of the wharf where the shells lay from selling or delivering the shells to the Government of Japan, or to any person on their behalf, or otherwise from parting with, selling, or disposing of the shells and projectiles.
On the 11th of May an application to the court was made on behalf of the Mikado of Japan and his Envoy Extraordinary in this country, that, notwithstanding the injunction, the Mikado and his agents might be at liberty to remove the shells, and that if, and so far as might be necessary, the Mikado and liis Envoy should for the
purpose of making and being heard upon such application be added as defendants in the suit.
Upon this application an order was made by the Master of the Rolls that on the Mikado by his counsel submitting to the jurisdiction of this court and desiring to be made a defendant, and on payment into court by the Mikado of £100 as security for costs the name of the Mikado be added as a party defendant in the action.
Notice of motion was then given on the part of the Mikado that the injunction might be dissolved, and that the Mikado might be at liberty to take possession, and remove, out of the jurisdiction of the court, the shells in question, the property of his Imperial Majesty.
JAMES, L. J., BRETT, L. J., and COTTON, L. J., concurred, each delivering an opinion.
The following is that of BRETT, L. J.:—“It does not seem to me that in this case there is any fact whatever in dispute.
“ These shells were made by Krupp at Essen. That was no infringement of the plaintiff's patent. In Germany they were sold to the Mikado and paid for by the agents of the Mikado. None of these facts are in dispute; and this purchase and sale was a perfectly lawful purchase and sale. The Mikado had three ships of war building in this country, and he desired that these shells should be sent to this country and put on board these ships. They were sent to this country by the order and by the authority of the Mikado, through Ahrens & Co. They were brought into this country, and they were deposited on a wharf. The plaintiff then finding these shells in this country, and finding, as he alleges, that they were made according to the process of his patent, asserts that the bringing them into this country by Ahrens & Co. is an infringement of his patent by them; and thereupon he brings an action against Ahrens & Co., for the infringement. In that action he claims an injunction against Ahrens & Co., and it may be that he claims an order from the court to destroy those shells because he says they are an infringement of his patent. In the course of that suit an injunction is obtained against Ahrens & Co., and against others, which injunction in terms forbids them from delivering these shells, which with other things are in their possession, to the ships of the Mikado, and in fact forbids them from sending the shells to Japan. To this action the Mikado was no party, but he or his agents here come forward and claim to have the delivery and possession of these shells. The defendants in the action are not unwilling to give the shells to the Mikado, but they say, “If we do so, it may be said that we have broken the injunction, and we may therefore be liable to certain penalties.' It seems to me