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December 1, 1856


THIS case came up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts.

The facts in the case and state of the pleadings in the Circuit Court are set forth so particularly, in the opinion of the court, that they need not be repeated.

It was submitted on a printed argument by Mr. Dana for the plaintiff in error, and argued by Mr. Austin for the defendant.

As the points raised in the case are entirely new, it is thought expedient to present them to the reader as they were brought before the court by the respective counsel.

Mr. Dana, for the plaintiff in error, after stating the circumstances of the case, said that the question for the court to decide was:

Whether, under these circumstances, there is an exemption from the operation of our patent laws, by reason of the nationality of the vessel.

Since this cause was argued in the Circuit Court, my attention has been called to the case of Caldwell v. Van Vlissengen, 9 Hare, 415, (9 Eng. L. and Eq. Rep., p. 51.)

In that case, the machine patented was a screw propeller. This was a substantial part of the vessel, and almost necessary to her use. The vessel was built and solely owned in Holland, where the invention was in free and common use. The affidavits set forth facts sufficient to establish an exemption, if national character can give one. The court fully considers the question, and decides against the exemption. (On pp. 58, 59, the court puts the right to an injunction upon the ground that actions at law are maintainable in these cases.) The court considers that the question of the exemption of foreign vessels, either entirely, or in cases of reciprocity, is one of national policy, and to be dealt with by the Legislature, rather than by the courts.

After reading this decision, I wrote to Sir William Page Wood, the counsel for the respondents, then Solicitor General, and now Vice Chancellor, and received from him the following reply:


November 6, 1855.

MY DEAR SIR: Your letter reached me yesterday. The case you refer me (Caldwell v. Van Vlissengen) was not appealed. I thought the decision was right, though it was against me. At the same time, I saw that there were inconveniences in the application of the law; and in the session of 1852, when a bill was passing through the House of Commons, with reference to the amendment of the Patent Laws, I proposed the insertion of the following clause. [Here follows section 26, of the act of 15 and 16 Victoria, ch. 83.]

The opinion of Sir William Page Wood is entitled to great weight before every judicial tribunal, as is well known to your honors.

After this decision, the act 15 and 16 Victoria, ch. 83, was passed; section 26 of which is as follows: (4 Chitty's Statutes, 217.) 'No letters patent for any invention (granted after the passing of this act) shall extend to prevent the use of such invention in any foreign ship or vessel, or for the navigation of any foreign ship or vessel, which may be in any port of her Majesty's dominions, or in any of the waters within the jurisdiction of any of her Majesty's courts, where such invention is not used for the manufacture of any goods or commodities to be vended within or exported from her Majesty's dominions. Provided, always, that this enactment shall not extend to the ships or vessels of any foreign State, of which the laws authorize subjects of such foreign State, having patents or like privileges for the exclusive use or exercise of inventions within its territories, to prevent or interfere with the use of such inventions in British ships or vessels, while in the ports of such foreign State, or in the waters within the jurisdiction of its courts, where such inventions are not so used for the manufacture of goods or commodities, to be vended within or exported from the territories of such foreign State.'

Such is the state of the law in Great Britain, the greatest commercial nation of Europe. There is no reason to believe that the law of any other nation of Europe varies from that of England. Indeed, it is probable that other nations will to likewise, and keep in their own hands the power of granting or withholding such an exemption, on considerations of policy, by legislation or treaty.

It is therefore respectfully suggested that the court should leave this question to the law-making and treaty-making departments of our Government, in the mean time placing the law in this country upon the same basis upon which it rests in England.

Is there any controlling reason why the court should not do this?

It is conceded that the statute, in its terms, suggests no exemption. No interpretation of the statute would suggest an exemption. If one is established, it must be by some imposed construction, paramount over the plain language of the acts. This is found solely in certain supposed principles of international law. No decision in point, in this country, has been cited, and the English cases referred to are inapplicable, as shown in Caldwell v. Van Vlissengen, cited.

The defendant's vessel, being private property, and here voluntarily, for purposes of trade, has no exemption from general national jurisdiction. (Phillimore's Int. Law, 367, 373; The Exchange, 7 Cranch, 144; Story's Conflict of Laws, sec. 383.)

International law respects absolute rights, the violation of which is cause of war, and comity, or rights of imperfect obligation, the contravention of which is not presumed, but which each nation is competent to contravene if it chooses. (This distinction is well stated in Mr. Webster's letter to Lord Ashburton, in the appendix to Wheaton's Law of Nations.)

It will not be claimed that the prohibition of the use of such an article as this, in a private vessel, under these circumstances, is a violation of any absolute right secured by the law of nations. The Government has the right to prohibit commerce altogether, or with particular nations, as by embargo or nonintercourse laws. (1 Kent's Com., sec. 33 n; Vattel, Book 2, Ch. 7, sec. 94; Ch. 8, sec. 100; Ch. 2, secs. 25, 33–Book 1, Ch. 8, sec. 90.)

As a nation may prohibit trade, so it may lay conditions and restrictions. Authorities cited supra. (Vattel, Book 2, Ch. 8, sec. 100.)

The question is really under the comitas gentium. Between countries trading freely, is there a presumption from the law of comity that no nation will prohibit or restrict the use of such an invention, under such circumstances, so well settled as to authorize a court to establish the exception against the language of the statute?

This can hardly be contended, since the case of Caldwell v. Van Vlissengen, and the act 15 and 16 Victoria.

This is not a question of property, or of the domicil or situs of property. The defendant may have his vessel full of these articles, if he chooses. We admit the property in the article to be in him, and that it is part of the national wealth of France, and has its situs in France, for purposes of taxation, and for all national purposes. (Hays v. Pacific Co., 17 How., 596.) The question is upon a restriction of its use within our dominions.

As the use of the machine is not alleged to be necessary, and the presence of the vessel here is voluntary, if the comity of nations does not allow the prohibition in this case, it would forbid it in all cases of patents; and vessels nominally owned in the British Provinces, and in the West India Islands, may use all our nautical patents.

To what burdens is the foreigner and his personal property subject?

Not to taxes for the support of the Government. (In re Bruce, 2 Cr. and J., 437; Vattel, Book 2, Ch. 8, sec. 106.)

Nor to duties that relate to the quality of a citizen, as militia or jury duties. But they are subject to all burdens, taxes, and duties, relating to the police and economical regulations of a State. (Vattel, B. 2, Ch. 8, sec. 106.)

They are subject to imposts and duties levied for the purpose of encouraging the manufactures or other industry of a country, and are liable to prohibitions and restrictions made for the same purpose. Such are most navigation laws, and a large part of the revenue laws of a country. (Vattel, B. 2, Ch. 8, sec. 106; 1 Kent's Com., 35.)

Their exemption seems to be based upon the principle that they shall not be required to do anything inconsistent with their home allegiance, or anything which supposes an allegiance or fealty to the State in which they merely sojourn.

The patent and copyright laws of a country stand upon the same ground with navigation laws, and laws prohibiting altogether or restricting certain kinds of trade, for economical purposes, or to add to the military resources and strength, or to increase the effective power and industry of a country, or to develop its genius. As to these, each nation is the proper judge of its own policy. (Vattel, B. 2, Ch. 2, secs. 25, 33.)

Indeed, Vattel (B. 1, Ch. 20, sec. 255) seems to define the police regulations of a country so ...

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