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Critical Brief: The Schooner Exchange v. McFaddon (S.Ct. 1812)

Facts: The Exchange was an American vessel privately owned by John McFaddon and

William Greetham (Plaintiffs). They filed a libel action to reclaim it in the District Court of the

United States for the District of Pennsylvania against the vessel, claiming “…that they were her

sole owners, on the 27th of October, 1809, when she sailed from Baltimore, bound to St.

Sebastians, in Spain” (831). During the vessel’s voyage, the ship was forcefully taken on

December 30, 1810 by agents of France who were acting under direct orders from Napoleon, the

Emperor of France. The Exchange was then outfitted as an armed public vessel of the French

Government under the name of Balaou. When the Balaou docked in the port of Philadelphia due

to bad weather, McFaddon and Greetham claimed that the vessel had been illegally seized and

that they were legally entitled to the ship and its possessions. The district court denied the libel

for lack of jurisdiction, so the plaintiffs appealed. The appellate court reversed the decision, and

the French appealed. As a result, the case was heard by the Supreme Court.

Legal Issue: The Supreme Court had to determine whether the Balaou was protected

under the legal rules of foreign sovereign immunity, which shields foreign sovereigns and their

acts from the scrutiny of national courts. Can an American citizen assert a title to an armed

national vessel in an American court after it was found in the waters of the United States?

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 Holding and Reasoning: Chief Justice Marshall delivered the majority opinion, and the

Supreme Court reversed the appellate court’s decision and affirmed the district court’s dismissal

of the libel. It found that the Balaou was a public armed vessel commissioned by and in service

of Emperor Napoleon of France. If the ship had been seized for commercial use, the Supreme

Court would not have lacked territorial jurisdiction and would have been permitted to hear the

case. However in this instance, the meddling of U.S. courts cannot occur without affecting

Napoleon’s power and his dignity. “The implied license therefore under which such vessel enters

friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as

containing an exemption from the jurisdiction of the sovereign, within whose territory she claims

the rites of hospitality” (832-833). Essentially, the Court held that the Balaou entered American

territory under the implied promise that it was exempt from the jurisdiction of the United States

since it enjoyed sovereign immunity. “Upon these principles, by the unanimous consent of

nations…nations have not yet asserted their jurisdiction over the public armed ships of a foreign

sovereign entering a port open for their reception” (833). Thus, by allowing French naval ships

in U.S. ports, it was implicit that these ships will be protected by the Foreign Sovereign

Immunity Doctrine.

Legal and Political Implications: Despite losing the case in America, McFaddon and

Greetham still had the option of going to France and trying their suit there, but it would have

been extremely difficult to win in a French court. Conclusively, the Supreme Court was

upholding the absolutist or traditional theory of sovereign immunity. Since the world is

composed of different types of sovereigns who enjoy equal rights and independence “…all

sovereigns have consented to a relaxation in practice, in cases under certain peculiar

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circumstances, of that absolute and complete jurisdiction within their respective territories which

sovereignty confers” (832). The Court’s upholding was certainly a direct result of a peculiar

circumstance since France was an ally of the U.S. during the War of 1812. Consequently, the

Supreme Court did not want to upset diplomatic relations with a key ally while the U.S. was

fighting a war against the British. Even though the Exchange was seized improperly, the fact that

the Emperor was an ally and took custody of it for the public purpose of military use meant that

the Court lacked territorial jurisdiction. In addition, the U.S. was still a relatively weak country

in 1812 that had limited international influence, so it could not afford to anger both France and

Britain. With the onset of the 20th century and globalization, the United States began to adopt a

more limited theory of sovereign immunity because it wanted states to be more accountable for

their actions. After both World War II and the Cold War, the United States had the ability to

implement and enforce this new modern theory since it had become a major world power and

controlled almost all of the world’s major international institutions.