The Enquirer

From the National Intelligencer.

Case of the Schooner
EXCHANGE.

This interesting cause was argued last week, in the
Supreme Court of the United States, now in session,
by Mr. DALLAS, Attorney of the United States for
the district of Pennsylvania, and Mr. PINKNEY,
Attorney-General of the United States, upon one
side, and by Mr. HARE of Philadelphia, and Mr.
HARPER of Baltimore, upon the other. The case
was this--on the 21st of August last, John McFadden
and William Greetham, of the state of Maryland,
filed their libel in the district court of the United
States, for the district of Pennsylvania, against
the schooner Exchange, setting forth that they were
her sole owners, on the 27th October 1809, when
she sailed from Baltimore, bound to St. Sebastians
in Spain. That while lawfully and peaceably pursuing
her voyage, she was on the 30th of December
1810, violently and forcibly taken by certain persons,
acting under the decrees and orders of NAPOLEON
Emperor of the French, out of the custody of
the libellants, and their captain and agent, and was
disposed of by those persons, or some of them, in
violation of the rights of the libellants, and of the
laws of nations in that behalf. that she had been
brought into the port of Philadelphia and was then
in the jurisdiction of that court, in possession of a
certain Denis M. Begon, her reputed captain or
master. That no sentence or decree of condemnation
had been pronounced against her, by any court
of competent jurisdiction ; but that the property of
the libellants in her remained unchanged and in full
force. They therefore prayed the usual process of
the court to attach the vessel and that she might be
restored to them.

Upon this libel the usual process was issued returnable
on the 30th of August 1811, which was executed
& returned accordingly; but no person appeared
to claim the vessel in opposition to the libellants.
On the 6th of September the usual proclamation was
made for all persons to appear and show cause why
the vessel should not be restored to her former
owners, but no person appeared.

On the 18th of September, a like proclamation was
made, but no appearance was entered.

On the 20th September, Mr. Dallas, the attorney
of the United States, for the district of Pennsylvania,
appeared, and (at the instance of the Executive
department of the government of the United States,
as it is understood) filed a suggestion, to the
following effect--

Protesting that he does not know and does not admit
the truth of the allegations contained in the libel, he
suggests and gives the court to understand and be informed--

That in as much as there exists between the United
States of America and Napoleon, Emperor of
France and King of Italy, &c. &c. a state of peace
and amity : the public vessels of his said Imperial &
Royal Majesty, conforming to the laws of the said
United States, may freely enter the ports and harbors
of the said United States, and at pleasure depart
therefrom without seizure, arrest, detention or molestation.
That a certain public vessel described &
known as the Balaou, or vessel, No. 5, belonging
to his said Imperial and Royal Majesty, and actually
employed in his service under the command of the
Sieur Bezon upon a voyage from Europe to the Indies,
having encountered great stress of weather upon
the high seas, was compelled to enter the port of
Philadelphia, for refreshment and repairs, about the
22d of July 1811. That having entered the said
port from necessity and not voluntarily : having procured
the requisite refreshments and repairs, and
having conformed in all things to the law of nations,
and the laws of the United States, was about to depart
from the said port of Philadelphia, and to resume
her voyage in the service of his said Imperial
and Royal Majesty, when on the 21st of August
1811, she was seized, arrested and detained in pursuance
of the process of attachment issued upon the
prayer of the libellants. That the said public vessels
had not, at any time been violently and forcibly taken
or captured from the libellants, their captain
and agent on the high seas as prize of war, or otherwise;
but that if the said public vessel, belonging to
his said Imperial and Royal Majesty as aforesaid, ever
was a vessel navigating under the flag of the
United States, and possessed by its merchants, citizens,
or others, the property of the libellants in the said vessel,
now claimed as aforesaid, was vested and transferred in his Imperial
and Royal Majesty, within a port of his empire or of a country occupied by his arms.

And the said attorney submitting, whether, in consideration of the premises, the court
will take cognizance of the cause, respectfully prays
that the court will be pleased to order and decree
that the process of attachment, heretofore issued, be
quashed; that the libel be dismissed with costs; and
that the said public vessel, her cargo, tackle &c. belonging
to his Imperial and Royal Majesty be restored, &c. And the attorney brings here into
court the original commission of the said Sieur Begon &c.

On the 27th of September 1811, the libellants filed
their answer to the suggestion of the district attorney,
to which they except, because it does not appear to
be made for or on behalf of, or at the instance of the
U. States, or any other body politic or person.

They aver that the schooner is not a public vessel
belonging to his Imperial and Royal Majesty, but is
the private property of the libellants.

They deny that she was compelled by stress of weather to enter
the port of Philadelphia, or that she came otherwise
than voluntarily; and that the property of
the libellants in the vessel never was vested or
conveyed in his Imperial and Royal Majesty within a port of his
empire or of a country occupied by his arms.

The district attorney produced the affidavits of the
Sieur Begon and the French
consul verifying the
commission of the captain, and stating the fact, that
the public vessels of the Emperor of France never
carry with them any other document or evidence
that they belong to him, than his flag, the commission,
and the possession of his officers.

In the commission it was stated that the vessel was
armed at Bordeaux.

On the 4th of October, 1811, the district judge
dismissed the libel with costs, on the ground that a
public armed vessel of a foreign sovereign, in amity
with our government is not subject to the ordinary
judicial tribunals of the country, so far as regards the
question of title by which such sovereign claims
hold the vessel :

From this sentence the libellants appealed to the
Circuit Court, where it was reversed.

On the 28th of October 1811,

From this sentence of reversal the district attorney
appealed to the Supreme Court of the United States
where the cause was fully and ably argued.

On the 2d of March 1812, the opinion of the court,
(all the Judges being present) was delivered
as follows--

Marshall, Chief Justice : THE SCHOONER EXCHANGE
v.
John, McFadon & William Greetham:

This case involves the very delicate and
important inquiry, whether an American
citizen can assert in an American Court a
title to an armed national vessel, found within
the waters of the U. States.

The question has been considered with an
earnest solicitude, that the decision may
conform to those principles of the national
and municipal law by which it ought to be
regulated.

In exploring an unbeaten path, with few,
if any, aids from precedents or written law.
the court has found it necessary to rely
much on general principles, and on a train
of reasoning founded on cases in some degree
analogous to this.

The jurisdiction of courts is a branch of
that which is possessed by the nation as an
independent sovereign power.

The jurisdiction of the nation within its
own territory is necessarily exclusive and
absolute. It is susceptible of no limitation
not imposed by itself. Any restriction upon
it, deriving validity from an external source,
would imply a diminution of its sovereignty
to the extent of the restriction, and an investment
of that sovereignty to the same extent in that power which could impose such
restriction.

All exceptions, therefore, to the full and
complete power of a nation within its own
territories, must be traced up to the consent
of the nation itself. They can flow from no
other legitimate source.

This consent may be either express or implied.
In the latter case, it is less determinate,
exposed more to the uncertainties of
construction; but, if understood, not less obligatory.

The world being composed of distinct sovereignties,
possessing equal rights & equal
independence, whose mutual benefit is promoted
by intercourse with each other, and
by an interchange of those good offices which
humanity dictates and its wants require, all
sovereigns have consented to a relaxation in
practice, in cases under certain peculiar circumstances,
of that absolute and complete
jurisdiction within their respective territories
which sovereignty confers.

This consent may in some instances be
tested by common usage, and by common opinion,
growing out of that usage.

A nation would justly be considered as
violating its faith, although that faith might
not be expressly plighted, which should suddenly
and without previous notice, exercise
its territorial powers in a manner not consonant
to the usages and received obligations
of the civilized world.

This full and absolute territorial jurisdiction
being alike the attribute of every sovereign,
and being incapable of conferring extraterritorial
power, would not seem to
contemplate foreign sovereigns nor their sovereign
rights as its objects. One sovereign
being in no respect amenable to another ; &
being bound by obligations of the highest
character not to degrade the dignity of his
nation by placing himself or its sovereign
rights within the jurisdiction of another, can
be supposed to enter a foreign territory only
under an express licence, or in the confidence
that the immunities belonging to his independent
sovereign station, though not expressly
stipulated, are reserved by implication, and will be extended to him.

This perfect equality and absolute independence
of sovereigns, and this common interest
impelling them to mutual intercourse,
and an interchange of good offices with each
other, have given rise to a class of cases in
which every sovereign is understood to
waive the exercise of a part of that complete
exclusive territorial jurisdiction which
has been stated to be the attribute of every
nation.

1st. One of these is admitted to be the
exemption of the person of the sovereign
from arrest or detention within a foreign
territory.

If he enters that territory with the knowledge
and licence of its sovereign, that licence,
although containing no stipulation
exempting his person from arrest, is universally
understood to imply such stipulation.

Why has the whole civilized world concurred
in this construction ? The answer
cannot be mistaken. A foreign sovereign
is not understood as intending to subject
himself to a jurisdiction incompatible with
his dignity and the dignity of his nation, and
it is to avoid this subjection that the licence
has been obtained. The character to whom
it is given, and the object for which it is
granted, equally require that it should be
construed to impart full security to the person
who has obtained it. This security,
however, need not be expressed ; it is implied
from the circumstances of the case.
Should one sovereign enter the territory
of another, contrary to express or implied
prohibition, it would not seem that he could
claim any immunity from the jurisdiction of
the place ; but if his entrance be with the
consent of the sovereign, express or implied,
it is unnecessary to enquire whether his
sovereign rights be such as to exempt him
from the jurisdiction of the country, which does not appear to be entirely settled, a decision of which is not necessary to any conclusion to which the court
arrives in the case under consideration.
If he did not thereby expose himself to the
jurisdiction, he had entered, it would seem
to be because all sovereigns implicitly engage
not to avail themselves of a power
over their equals, which a romantic confidence
in their magnanimity has placed in
their hands.

2d. A second case, standing on the same
principles with the first, is the immunity
which all civilized nations allow to foreign
ministers.

Whatever may be the principle on which
this immunity is established, whether we
consider him as in the place of the sovereign
he represents, or by a political fiction
suppose him to be extra-territorial, and,
therefore, in point of law, not within the jurisdiction
of the sovereign at whose court he
resides; still the immunity itself is granted
by the governing power of the nation to
which the minister is deputed. This fiction
of ex-territoriality could not be erected and
supported against the will of the sovereign
of the territory. He is supposed to assent
to it. The consent is not expressed. It is true
that in some countries, and in this among
others, a special law is enacted for the case.
But the law obviously proceeds on the idea
of prescribing the punishment of an act previously
unlawful, not of granting to a foreign
minister a privilege which he would not
otherwise possess.

The assent of the sovereign to the very
important and extensive exemptions from
territorial jurisdiction which are admitted
to attach to foreign ministers, is implied from
the considerations that, without such exemption,
every sovereign would hazard his own
dignity by employing a public minister abroad.
His minister would owe temporary
and local allegiance to a foreign prince, and
would be less competent to the objects of his
mission. A sovereign committing the interests
of his nation with a foreign power to the
care of a person whom he has selected for
that purpose, cannot intend to subject his
minister in any degree, to that power ; and,
therefore, a consent to receive him, implies
a consent that he shall possess those privileges
which his principal intended he should
retain--privileges which are essential to
the dignity of his sovereign, and to the duties
he is bound to perform.

In what cases a minister, by infracting the
laws of the country in which he resides, may
subject himself to other punishment than
will be inflicted by his own sovereign, is an inquiry
foreign to the present purpose. If his
crimes be such as to render him amenable
to the local jurisdiction, it must be because
they forfeit the privileges annexed to his
character; and the minister, by violating
the condition under which he was received
as the representative of a foreign sovereign,
has surrendered immunities granted on those
conditions; or, according to the true meaning
of the original assent, has ceased to be entitled
to them.

3d. A 3d case in which a sovereign is understood
to cede a portion of his territorial jurisdiction
is, when he allows the troops of a
foreign prince to pass through his dominions.

In such case, without any express declaration
waiving jurisdiction over the army to
which this right of passage has been granted,
the sovereign who should attempt to exercise
it would certainly be considered as violating
his faith. By exercising it, the purpose
for which the free passage was granted
would be defeated, and a portion of the
military force of a foreign independent nation
would be diverted from those national objects
and duties to which it was applicable.
and would be withdrawn from the control of
the sovereign whose power and whose safety
might greatly depend on retaining the exclusive
command and disposition of this
force. The grant of a free passage therefore
implies a waiving of all jurisdiction over
the troops during their passage, and permits
the foreign general to use that discipline and
to inflict those punishments which the government
of his army may require.

But if, without such express permit, an army
should be led through the territories of a
foreign prince, might the jurisdiction of the
territory be rightfully exercised over the individuals
composing this army?

Without doubt a military force can never
gain immunities of any other description
than those which war gives, by entering a
foreign territory against the will of its sovereign.
But if his consent, instead of being
expressed by a particular license, be expressed
by a general declaration that foreign
troops may pass thro' a specified tract of
country, a distinction between such general
permit and a particular licence is not perceived.
It would seem reasonable that every
immunity which would be conferred by a
special licence, would be in like manner conferred
by such general permit.

We have seen that a licence to pass
thro' a territory implies immunities not expressed,
and it is material to enquire why
the licence itself may not be presumed.
It is obvious that the passage of an army
through a foreign territory will probably be
at all times inconvenient and injurious, and
would often be imminently dangerous to the
sovereign through whose dominions it passed.
Such a practice would break down
some of the most decisive distinctions between
peace and war, and would reduce a
nation to the necessity of resisting by war
an act not absolutely hostile in its character
or of exposing itself to the stratagems
and frauds of a power whose integrity
might be doubted, and who might enter the
Country under deceitful pretexts.
It is for reasons like these that the general
licence to foreigners to enter the dominions
of a friendly power, is never understood
to extend to a military force ; and an
army marching into the dominions of another
sovereign, may justly be considered as
committing an act of hostility ; and, if not
opposed by force, acquires no privilege by
its irregular and improper conduct. It may
however well be questioned whether any other
than the sovereign power of the state
be capable of deciding that such military
commander is without a licence.

But the rule which is applicable to armies,
does not appear to be equally applicable to ships
of war entering the ports of a
friendly power. The injury inseparable
from the march of an army through an inhabited
country, and the dangers often, indeed
generally, attending it, do not arise
from admitting a ship of war, without special
licence, into a friendly port. A different
rule therefore with respect to this species
of military force has been generally adopted.
If, for reasons of state, the ports
of a nation generally, or any particular
ports be closed against vessels of war generally,
or the vessels of any particular nation,
notice is usually given of such determination.
If there be no prohibition. the ports
of a friendly nation are considered as open
to the public ships of all powers with whom
it is at peace, and they are supposed to enter
such ports and to remain in them while
allowed to remain under the protection of
the government of the place.

In almost every instance, the treaties between
civilized nations contain a stipulation
to this effect in favor of vessels driven in by
stress of weather or other urgent necessities.
In such cases the sovereign is bound by
compact to authorize foreign vessels to enter
his ports. The treaty binds him to allow
vessels in distress to find refuge and asylum
in his ports, and this is a licence
which he is not at liberty to retract. It
would be difficult to assign a reason for
withholding from a licence thus granted, any
immunity from local jurisdiction which
would be implied in a special license.

If there be no treaty applicable to the
case, and the sovereign, from motives deemed
adequate by himself, permits his ports
to remain open to the public ships of foreign
friendly powers. the conclusion seems irresistible
that they enter by his assent. And
if they enter by his assent necessarily implied.
no just reason is perceived by the
court for distinguishing this case from that
of vessels which enter by express assent.

In all the cases of exemption which
have been reviewed, much has been implied,
but the obligation of what was implied
has been found equal to the obligation of
that which was expressed. Are there reasons
for denying the application of this principle
to ships of war?

In this part of the subject a difficulty is
to be encountered, the seriousness of which is
acknowledged, but which the court will
not attempt to escape.

Those treaties which provide for the admission
and safe departure of public vessels
entering a port from stress of weather or
other urgent cause, provide in like manner
for the private vessels of the nation ; and
where public vessels enter a port under
the general licence which is implied merely
from the absence of a prohibition, they
are, it may be urged, in the same condition
with merchant vessels entering the same
port for the purposes of trade who cannot
thereby claim any exemption from the jurisdiction
of the country. It may be contended,
certainly with much plausibility
if not correctness, that the same rule and
same principle is applicable to public and
private ships ; and since it is admitted that
private ships entering without special licence
become subject to the local jurisdiction,
it is demanded on what authority an exception
is made in favor of ships of war ?
It is by no means conceded that a private
vessel really availing herself of an asylum
provided by treaty, and not attempting to
trade, would become amenable to the local
jurisdiction unless she committed some act
forfeiting the protection she claims under
compact. On the contrary, motives may
be assigned for stipulating and according
immunities to vessels in cases of distress,
which would not be demanded for or allowed
to those which enter voluntarily and for
ordinary purposes. On this part of the
subject, however, the court does not mean
to indicate any opinion. The case itself
may possibly occur, and ought not to be
prejudged.

Without deciding how far such stipulations
in favor of distressed vessels as are usual
in treaties, may exempt private ships
from the jurisdiction of the place, it may
safely be asserted that the whole reasoning
upon which such exemption has been implied
in other cases, applies with full force
to the exemption of ships of war in this.

It is impossible to conceive, says Vattel,
that a Prince who sends an ambassador or any other minister can have any
intention of subjecting him to the authority
of a foreign power; and this consideration
furnishes an additional argument which
completely establishes the independency of
a public minister. If it cannot be reasonably
presumed that his sovereign means to
subject him to the authority of the prince
to whom he is sent, the latter, in receiving
the minister, consents to admit him on the
footing of independency; & thus there exists
between the two princes a tacit convention
which gives a new force to the natural obligation.

Equally impossible is it to conceive, whatever
may be the construction as to private
ships, that a prince who stipulates a passage
for his troops or an asylum for his ships of
war in distress, should mean to subject his
army or his navy to the jurisdiction of a foreign
sovereign. And if this cannot be presumed,
the sovereign of the port must be
considered as having conceded the privilege
to the extent in which it must have been understood
to be asked.

To the court it appears that where, without
treaty, the ports of a nation are open to
the private and public ships of a friendly
power whose subjects have also liberty without
special licence to enter the country for
business or amusement, a clear distinction
is to be drawn between the rights accorded
to private individuals or private trading vessels,
and those accorded to public armed
ships which constitute a part of the military
force of the nation.

The preceding reasoning has maintained
the propositions that all exemptions from territorial
jurisdiction must be derived from
the consent of the sovereign of the territory ;
that this consent may be implied or expressed ;
and that when implied its extent must
be regulated by the nature of the case and
the views under which the parties requiring
and conceding it, must be supposed to
act.

When private individuals of one nation
spread themselves through another as business
or caprice may direct, mingling indiscriminately
with the inhabitants of that other ;
or when merchant vessels enter for
the purposes of trade, it would be obviously
inconvenient and dangerous to society,
and would subject the laws to continual infraction,
and the government to degradation,
if such individuals or merchants did not
owe temporary or local allegiance, and were
not amenable to the jurisdiction of the country.
Nor can the foreign sovereign have
any motive for wishing such exemption. His
subjects thus passing into foreign countries
are not employed by him, nor are they engaged
in national pursuits. Consequently
there are powerful motives for not exempting
persons of this description from the jurisdiction
of the country in which they are
found, and no one motive for requiring it.
The implied licence therefore under which
they enter can never be construed to grant
such exemption.

But in all respects different is the situation
of a public armed ship. She constitutes
a part of the military force of her nation.
Acts under the immediate and direct command
of the sovereign. Is employed by
him in national objects. He has many and
powerful motives for preventing those acts from being
Reference of aforesaid state. Such interference cannot take place without affecting his power and his dignity. In the implied licence therefore under which such vessel enters a friendly port, may reasonably be construed, and it seems to the court ought to be construed, as containing an exception from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality.

Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign sovereign entering a port open for their reception.

Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not distinguishable by any legal exemption from the property of an ordinary individual; and has quoted several cases in which courts have exercised jurisdiction over causes in which a foreign sovereign was made a party defendant.

Without indicating any opinion on this question, it may safely be affirmed that there is a manifest distinction between the private property of the person who happens to be a Prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the Prince and assuming the character of a private individual; but this he cannot be presumed to do with respect to any portion of that armed force which upholds his crown, and the nation he is entrusted to govern.

The only applicable case cited by Bynkershoek is that of the Spanish ships of war seized in Flushing for a debt due from the King of Spain. In that case, the States General interposed; and there is reason to believe, from the manner in which the transaction is stated, that, either by the interference of government, or the decision of the court, the vessels were released.

This case of the Spanish vessels is, it is believed, the only case furnished by the history of the world, of an attempt made by an individual to assert a claim against a foreign Prince by seizing the armed vessels of the nation. That this proceeding was at once arrested by the government, in a nation which appears to have asserted the power of proceeding in the same manner against the private property of the Prince, would seem to furnish no feeble argument in support of the universality of the opinion in favor of the exemption claimed for ships of war. The distinction made in our own laws between public and private ships would appear to proceed from the same opinion.

It seems then to the court to be a principle of public law that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.

Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.

Those general statutory provisions therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him a right to claim that property in the court of the country in which it is found, ought not, in the opinion of this court, to be so construed as to give them jurisdiction in a case in which the sovereign power has impliedly consented to waive its jurisdiction.

The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are diplomatic rather than legal discussion, are of great weight and merit serious attention. But the argument has already been drawn to a length which forbids a particular examination of these points.

The principles which have been stated will now be applied to the case at bar.

In the present state of the evidence and proceedings the Exchange must be considered as a vessel which was the property of the libellants, whose claim is repelled by the fact that she is now a national vessel commissioned by, and in the service of, the Emperor of France. The evidence of this fact is not controverted. But it is contended that it constitutes no bar to an enquiry into the validity of the title by which the Emperor holds this vessel. Every person, it is alleged, who is entitled to property brought within the jurisdiction of our courts, has a right to assert his title in those courts, unless there be some law taking his case out of the general rule. It is therefore said to be the right and if it be the right, it is the duty of the court, to enquire whether this title has been extinguished by an act the validity of which is recognised by national or municipal law.

If the preceding reasoning be correct, the Exchange, being a public armed ship in the service of a foreign sovereign with whom the government of the U. States is at peace, and having entered an American port open for her reception on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.

If this opinion be correct, there seems to be a necessity for admitting that the fact might be disclosed to the court by the suggestion of the Attorney for the U. S.

I am directed to deliver it, as the opinion of the court, that the sentence of the circuit court reversing the sentence of the district court in the case of the Exchange be reversed, and that of the district court dismissing the libel be affirmed.