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

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."

CHAPTER II.

TERRITORIAL JURISDICTION.

SECTION 9.-IMMUNITIES OF FOREIGN Sovereigns.

VAVASSEUR v. KRUPP.

CHANCERY, 1878.

(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 his Envoy should for the

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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

beyond dispute that this was the purpose for which the Mikado came in and desired to be made a party to the suit, and the Master of the Rolls thus describes the purpose. [His Lordship then read the judgment of the Master of the Rolls.] Now it is said that in the first place there is a dispute whether these shells are the property of the Mikado. It is argued that if he were a private individual, then, although he has purchased these shells and paid for them, yet, inasmuch as there has been an infringement of the patent, the property is not in him, because the court may order the shells to be destroyed. Is that argument good or not? To my mind it is utterly fallacious. The patent law has nothing to do with the property. The facts here are undisputed that Krupp made them with his own materials in Germany, where he had a right to make them; that he entered into a contract to sell specific shells to the Mikado; that that contract was performed, and that the shells were paid for, and that they were delivered in Germany to the Mikado's agent. Well, unless the patent law prevents the property from passing, nobody can doubt that the property passed to the Mikado. Therefore the dispute is not upon facts, but upon a false theory of law, that the patent law prevented the property from passing. I am clearly of opinion that the patent law did not prevent the property from passing. The goods were the property of the Mikado. They were his property as a sovereign; they were the property of his country; and therefore he is in the position of a foreign sovereign having property here.

"Whether the fact of Ahrens & Co. bringing these goods into England under these circumstances, and with this intention, was an infringement of the patent, I decline to consider. I shall assume for this purpose that it was an infringement, and that we have in this country property of the Mikado which infringes the patent. If it is an infringement of the patent by the Mikado you cannot sue him for that infringement. If it is an infringement by the agents, you may sue the agents for that infringement, but then it is the agents whom you sue. The injunction is against the agents, the Mikado being then no party to the action, and not being forbidden to do anything. He then comes here as a sovereign, and requires the delivery of his own goods. His only difficulty is the injunction against the agents, and for the purpose of enabling the court to make an order, he what is called 'submits himself to the jurisdiction of the court.' I think the interpretation put by the Master of the Rolls upon the order then made is right, and that it was only an order that the Mikado might be made a defendant for the purpose of enabling the court to make the order which the court has made. He now says 'I know not, and I care not, whether my agents have infringed your patent law.

I have property in the country, which property is my own. I demand that it shall be delivered to me, and I make myself a defendant in your court merely for the purpose of your modifying the order which you have made, so that my agents may not be injured in consequence of their delivering to me my own property.'

"And the only order that the Master of the Rolls has made is that these goods may be delivered up to the Mikado; the meaning of which is that the mere fact of the Mikado taking these shells away shall not be considered as against Ahrens & Co. an infringement of the injunction. That is the whole effect of this order. The Mikado has a perfect right to have these goods; no court in this country can properly prevent him from having goods which are the public property of his own country. Therefore it seems to me that this order which is really made for the benefit of Ahrens & Co., was an order rightly made, and that this appeal cannot be sustained."

In regard to the point of submission to the jurisdiction, COYTON, L. J., said: "It is said that although under ordinary circumstances there is no jurisdiction as against a foreign sovereign, yet that in this particular case there is jurisdiction in consequence of the Mikado having come in and obtained the order of the 11th of May. It is said that a sovereign suing submits himself to the court as an ordinary plaintiff, and that the Mikado, in consequence of having obtained this order and acted upon it, puts himself in the position of an ordinary plaintiff. In the first place, there is this fallacy: the Mikado is not now in any way suing in the ordinary sense of the word, nor has he come to the court to establish as against an adverse claim his title to the property, which is really what is meant by a foreign sovereign coming here to sue to establish his rights. He is simply coming, and saying, The order of the court, possibly inadvertently, interferes with my sovereign rights. To prevent any question as to the defendants' committing a breach of the injunction by allowing me to remove the property, make an order that they be at liberty, notwithstanding the injunction, to hand them over to me! "So that, in my opinion, the very foundation for the suggestion fails.

"But again, even if the Mikado had brought himself into court as an ordinary defendant, that, in my opinion, would not give the court jurisdiction as against the subject-matter, namely, jurisdiction to interfere with the public property of Japan, which is represented here by the Mikado. But when one comes to look at the form of the order, the Mikado does not by it come in as an ordinary defendant. By it he simply says 'I wish to bring before the court the facts: that these are my property, that the defendants were not constructing them