countries in their property rights in trade-marks, in accordance with the terms and stipulations of the treaties that have been entered into between the United States and their respective governments. The Courts in many instances have upheld this power, as appears by the decisions cited in the notes. The digests should be consulted for the most recent cases, as many interesting points are constantly arising. Treaty provisions in regard to copyright are not referred to in this chapter because copyright is a matter under the control of the Federal Government by express Constitutional provisions.

official acts or laws of either coun | Ct. App., 2d Circ. 1899, 63 U. S. App. try any peculiar extraterritorial | 139, et seq., LACOMBE, J. Held, that effect.

"It follows from what has been said that the mark used by the defendants is not used in violation of any right of the complainant, and therefore the decree of the Circuit Court dismissing his bill with costs is affirmed."

La Republique Francaise vs. Schultz, U. S. Cir. Ct., S. D. N. Y. 1893, 57 Fed. Rep. 37, TOWNSEND, J. Article XIII of the general trademark treaty of 1883 with France, and general protection of trademarks thereunder, discussed.

Baltz Brewing Co. vs. Kaiser Brauerei, Beck & Co., U. S. C. C. A., 3d Circ. 1896, 39 U. S. App. 229, WALES, J.

the Trade-Mark Convention with the Austria-Hungarian Emperor of 1872 is not to be construed as holding that when the public in this country has acquired through the owner's laches the right to use a trade-mark, and a trade name, that such right is overcome whenever by the operation of some subsequent Hungarian Act, the trade name and trade-mark is secured to him in Hungary.

Holzapfel's Compositions Co. Ld. vs. Rahtzen's American Composi tion Co., U. S. Sup. Ct. (decided Oct. 21, 1901, not yet reported) PECKHAM, J. In this case the rights of English manufacturers to a trademark were not sustained.

3 For protection of copyright internationally is largely provided for by reciprocal legislation and executive proclamation, see note under § 460, chapter xvi, post.

The word "Kaiser" can be adopted as a trade-mark. The intent of article XVII of the German treaty of 1871 and of article I of the Austrian Convention of 1871 is to insure reciprocally to the citizens of the respective countries protection of the laws of the other concerning trade-marks; it is not intended to give to official acts or laws of the other country any pe The Revised Statutes, §§ 4948, et culiar extraterritorial effect. seq., as amended in 1891 provide Saxlehner vs. Eisner, etc., Hun- for reciprocal protection. See 26 yadi Janos Water cases, U. S. Cir. | U. S. Stat. at L., pp. 1106, et seq.

The copyright laws of the United States have been compiled recently and issued as bulletins Nos. 1, 2, 3, 4 (three parts), by the Copyright Office of the Library of Congress.

§ 448. Ex-Territoriality; consular courts of foreign countries in the United States. It is a well-settled rule of American law that foreign countries cannot establish tribunals of any nature within the limits of the United States without the consent of this Government.' Grave interna

§ 448.

One of the reasons given why a court might exercise this discretion not to take jurisdiction was the existence of treaty stipulations in regard to which the court says (p. 363):

discretion take jurisdiction; that 1 The Antelope, U. S. Sup. Ct. there were various circumstances 1825, 10 Wheaton, 66, MARSHALL, which might determine a court to Ch. J. In this case a slave ship refuse, in its discretion to take jufound hovering near the American risdiction; but that when the concoast was brought into port and antroversy between foreign vessels effort was made to condemn the arises under the common law of vessel under the general law of na- nations, the court should take jurtions on the ground that the slave isdiction in the absence of special trade was contrary thereto. The reasons shown to the contrary. vessel being Spanish and Portuguese was not affected by any treaty or by any of the municipal laws of this country, and Chief Justice Marshall held, following Sir William Scott (Lord Stowell's) opinion, in The Louis, 2 Dodson's Reports, 238, that although any nation might denounce the slave trade for itself and its own citizens, it could not go beyond that except by a treaty, and could not condemn a vessel belong ing to another nationality in the absence of a treaty. See especially p. 122 as to the equality of nations and the rule that one nation cannot enforce its laws in the territory of another.

The Belgenland, U. S. Sup. Ct. 1883, 114 U. S. 355, BRADLEY, J. In this case the general right of United States courts to take jurisdiction in cases of collision upon the high seas between vessels of different nationalities, both foreign, was discussed at length, and according to the syllabus it was held that such a matter was a proper subject of inquiry in any Court of Admiralty which first obtained jurisdiction; that the United States courts might in their

"For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction, but that from motives of convenience or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it

tional complications arose during Washington's second administration over the attempt made by Citizen Genet, then minister from France to the United States, to establish prize courts in our ports for the condemnation of prizes taken by French vessels of war; the principle just enunciated was formulated at that time, and has ever since been maintained as an integral part of the law of this country.?

will entertain jurisdiction even wages under a contract which is against the protest of the consul. generally strict in its character, This branch of the subject will be and framed according to the laws found discussed in the following of the country to which the ship cases: The Catherina, 1 Pet. Adm. belongs; framed also with a view 104; The Forsoket, 1 Pet. Adm. 197; to secure, in accordance with those The St. Oloff, 2 Pet. Adm. 428; The laws, the rights and interests of Golubchick, 1 W. Roberts, 143; the ship-owners as well as those of The Nina, L. R. 2 Adm. 428, and master and crew, as well when the Eccl. 44; S. C. on appeal, L. R. 2 ship is abroad as when she is at Priv. Co. 38; The Leon XIII, 8 home. Nor is this special characProb. Div. 121; The Havana, 1 ter of the case entirely absent when Sprague, 402; The Becherdass Am- foreign seamen sue the master of baidass, 1 Lowell, 569; The Pawa- their ship for ill-treatment. shick, 2 Lowell, 142. general principles of comity, Admiralty Courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction."

"Of course, if any treaty stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising between the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations should be fairly and faithfully observed. The Elwine Kreplin, 9 Blatchford, 438, reversing s. c., 4 Ben. 413; see s. c. on application for mandamus, Ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been en tered into between our government and foreign States. See Treaties and Conventions, Rev. Ed. 1873, Index, 1238.

On

2 Glass vs. Sloop Betsey, U. S. Sup. Ct. 1794, 3 Dallas,6,16, PER CURIAM. "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 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 "In the absence of such treaty France, not being so warranted, is stipulations, however, the case of not of right," and referred to in foreign seamen is undoubtedly a Wharton's Digest, vol. I, p. 2. special one, when they sue for

The courts of the United States and of the several States. are clothed with complete jurisdiction to administer justice on any and every occasion that can possibly arise between litigants whether citizens or foreigners. Before the proper court any person, whether he be a foreigner or a citizen, can seek and obtain redress for injuries received or rights withheld; it is only through such courts that justice can properly be administered; one exception to this general rule, however, is where consuls of foreign countries have by treaty stipulations been clothed with jurisdiction to hear and determine certain classes of cases in which citizens of their respective countries are interested; in those cases the courts of this country lose their jurisdiction, and the power of the consul to hear and determine the cause is exclusive.3

treaty of 1852 with the Hanseatic

The Belgenland, U. S. Sup. Ct. | to the jurisdiction of the court the 1884, 114 U. S. 355, BRADLEY, J. Weiburg vs. The St. Oloff, U. S. | League giving the consul jurisdicDist. Ct. Pa. 1790, Fed. Cases, 17,357, PER CURIAM. Same case, 2 Peter's Adm. 428.

The Burchard, U. S. Dist. Ct. S. D. Ala. 1890, 42 Fed. Rep. 608, TOULMIN, J. Held that American seamen shipped on a German vessel from Buenos Ayres before the German consul could not, on arrival at Mobile and before they were discharged, libel the ship for wages, as the German consul had exclusive jurisdiction under treaty of 1871. Also held that, if they had been discharged, the United States courts would have had jurisdiction after they ceased to be seamen of the vessel.

tion over seamen's wages' cases on vessels of the Hanse towns. The court overruled the plea and held as follows:

"The plea to the jurisdiction of the court, like a demurrer, admits the truth of the allegations contained in the libel, to wit: That the libellants are citizens of the United States; that the voyage was as stated; that the voyage ended at New Orleans; and that the libellants earned wages as mariners, serving on board of the Shakespeare during the whole of said voyage. Now the court has come to the conclusion that the differences spoken of in the article cited from the treaty of April 30, 1852, and which are made subject to the judgment and arbitration of consuls, vice-consuls, commercial and vice-commercial agents, are differences of such a nature as might possibly, if aggravated, disturb the completing the voyage at New Or-order and tranquillity of the counleans and leaving the vessel. The try-differences which touch the captain, a German, set up as a plea discipline of the ship.

See also Feol vs. Salamoni, U. S. Dist. Ct. Ga. 1886, 29 Fed. Rep. 534, SPEER, J.

Leavitt vs. The Shakespeare, U. S. Dist. Ct. La. 1871, Fed Cas. 8167, DURELL, J. American seamen libeled a Bremen ship for wages after

Certainly,

The powers of consuls to act as judges to the exclusion of the courts of the countries to which they are accredited are,

where the libel was filed interposed, claiming that the matter was under his consular jurisdiction pursuant to treaty with Norway and Sweden. The court sustained the consul's

the naked question of whether wages are due or not due, is not a difference which can disturb either the order or the tranquillity of the country. Again the court does not consider it to have been the in-contention in a brief opinion, the tention of the United States in whole of which is as follows: making the treaty of April 30, 1852, to subject its citizens in a question of wages claimed or earned on board of a foreign ship, to the judgment or arbitration of a foreign consul or commercial agent; and this opinion of the court is supported by the last clause of the article cited, to wit: 'But this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort on their return to the judicial authority of their own country.' This clause contemplates the return of the complaining mariner to his own country, where he may appeal from the adverse decision given by his consul at a foreign port; thus evidently restraining the application of the provisions of the article to such of the mariners as are subjects or citizens of the country whose flag their ship bears. In the case before the court, the libellants are citizens of the United States. They are already at home, and they have a right to resort to the judicial authority of their own country. Let the plea be overruled and dismissed."

Williams vs. Welhaven, U. S. Dist. Ct. Ala. 1892, 55 Fed. Rep. 80, TOULMIN, J. The libellant, a citizen of the United States filed a libel for wages and damages against the Norwegian steamship, the Welhaven.

"It has been held that, where an act of Congress is in conflict with a prior treaty, the act must control, as it is of equal force with the treaty and of later date, (Steamship Co. vs. Hedden, 43 Fed. Rep. 17), hence the contention of libellant's counsel could be sustained if the statute which he invokes in this case (Rev. St. §§ 4079-4081) was in conflict with the treaty between the United States and Norway and Sweden, which must govern the action of the court in the matter under consideration, or if such statute had any application to the case at all. But my opinion is that it is neither; that it is not in conflict with the treaty; and that it has no application to a case of this character. The earnest desire of this court to afford to seamen every right and protection authorized by the law, and the sympathy I have with that class of people to which libellant belongs, strengthened by the able and impressive argument of his counsel, induced me to take for examination and careful consideration the matter and arguments submitted before a decision by the court denying the jurisdiction prayed for; but such consideration has only served to confirm the correctness of the decision of this court in the case of The Burchard, 42 Fed. Rep. 608, where it was held that the court had no jurisdiction

The Norwegian consul at Mobile, in a case very similar to this one.