THE EXCHANGE V. MCFADDON, 11 U. S. 116 (1812)

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U.S. Supreme Court

The Exchange v. McFaddon, 11 U.S. 7 Cranch 116 116 (1812)

The Exchange v. McFaddon

11 U.S. (7 Cranch) 116


A public vessel of war of a foreign sovereign at peace with the United States, coming into our ports and demeaning herself in a friendly manner, is exempt from the jurisdiction of the country.

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

All exceptions to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself.

A nation would justly be considered as violating its faith, although not 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.

The full and absolute territorial jurisdiction being alike the attribute of every sovereignty and being incapable of conferring extraterritorial power, does not contemplate foreign sovereigns, nor their sovereign rights as its objects. One sovereign can be supposed to enter a foreign territory only under an express license 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.

A sovereign entering a foreign territory with the knowledge and license of its sovereign, that license, though containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation.

A foreign minister is considered as in the place of the sovereign he represents, and therefore not in point of law within the jurisdiction of the sovereign at whose court he resides.

Where a sovereign allows the troops of a foreign prince to pass through his dominions, he waives his jurisdiction over the army to which the right of passage has been granted without any express declaration to that effect.

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 under the protection of the government of the place.

If there be no treaty applicable to the case, and the sovereign permits his ports to remain open to the public ships of foreign friendly powers, they virtually enter by his assent. If they enter by an assent thus necessarily implied, their case cannot be distinguished from that of vessels entering by express assent.

The implied license under which a public armed ship enters a friendly port ought to be construed as containing an exemption from the jurisdiction of the sovereign whose territory she enters.

This being a cause in which the sovereign right claimed by Napoleon, the reigning emperor of the French, and the political relations between the United States and France were involved, it was, upon the suggestion of the Attorney General, ordered to a hearing in preference to other causes which stood before it on the docket. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 117

It was an appeal from the sentence of the Circuit Court of the United States for the District of Pennsylvania which reversed the sentence of the district court and ordered the vessel to be restored to the libellants.

The case was this:

On 24 August, 1811, John McFaddon & 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 27 October, 1809, when she sailed from Baltimore, bound to St. Sebastians, in Spain. That while lawfully and peaceably pursuing her voyage, she was on 30 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 of 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 law 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 Dennis 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 30 August, 1811, which was executed and returned accordingly, but no person appeared to claim the vessel in opposition to the libellants. On 6 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 13 September, a like proclamation was made, but no appearance was entered.

On 20 September, Mr. Dallas, the Attorney chanrobles.com-redchanrobles.com-red

Page 11 U. S. 118

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:

"Protecting 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 inasmuch as there exists between the United States of America and Napoleon, Emperor of France and King of Italy, &c., a state of peace and amity, the public vessels of his said Imperial and Royal Majesty, conforming to the law of nations and 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 and 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 Begon 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 22 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 24 August, 1811, she was seized, arrested, and detained in pursuant of the process of attachment issued upon the prayer of the libellants. That the said public vessel 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 the libellants, citizens thereof, as in their libel is alleged (which nevertheless

Page 11 U. S. 119

the said Attorney does not admit), the property of the libellants in the said vessel was seized and divested, and the same became vested in His Imperial and Royal Majesty within a port of his empire or of a country occupied by his arms, out of the jurisdiction of the United States and of any particular state of the United States, according to the decrees and laws of France in such case provided. 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 tackle, &c., belonging to his said Imperial and Royal Majesty be released, &c. And the said attorney brings here into court the original commission of the said Sieur Begon. . . ."

On 27 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 or at the instance of the United 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 divested, or vested 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 Bayonne.

On 4 October, 1811, the district judge dismissed chanrobles.com-redchanrobles.com-red

Page 11 U. S. 120

the libel with costs upon 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 to hold the vessel.

From this sentence, the libellants appealed to the circuit court, where it was reversed on 28 October, 1811.

From this sentence of reversal, the district attorney, appealed to this Court. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 135


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