THE SCHOONER EXCHANGE v MCFADDON (1812)
COURT OF PENNSYLVANIA
Doctrine:
 Public vessel of war of foreign sovereign at peace with the United States,
coming to US ports, in a friendly manner, is exempt from the jurisdiction
of USA
 Jurisdiction of nation within its own territory is exclusive and absolute
o Restrictions will be diminution of sovereignty
o Any exceptions must be consented to by the nation itself
Facts
 Appeal from sentence of Circuit Court of US for District of Pennsylvania
which reversed sentence of district court and ordered vessel to be restored
 McFaddon and Greetham filed libel case in District Court of US against
Schooner Exchange in 1811
o Claimed that they were her sole owners when she sailed from
Baltimore to Spain
o On December 30, 1810, she (the vessel) was violently and forcibly
taken by certain persons, acting under decrees and orders of
Napoleon out of the custody of the libellants and their captain
o Violation of the rights of the libellants and of the law of nations
o Brought into port of Philadelphia and was in jurisdiction of the
court, in possession of Dennis Begon
o No sentence or decree of condemnation has been pronounced
against her, but the property of libellants in her remained
unchanged and in full force
o Prayed for usual process to attach vessel and be restored to them
 No person appeared to claim vessel in opposition to libellants
o Despite usual proclamation for all persons to appear and show
cause why vessel shouldn’t be restored to former owners
 District Attorney suggests that the order and decree for attachment be
quashed and libel be dismissed with costs, and public vessel belonging to
Imperial and Royal Majesty be released
 Libellants aver that schooner is not a public vessel which belongs to
Imperial and Royal Majesty, but private property of libellants
o Deny that she was compelled by stress of weather to enter port of
Philadelphia or that she came otherwise than voluntarily
o Property of libellants was never divested or vested in Imperial and
Royal Majesty
 District judge dismissed libel with costs upon ground that public vessel of a
foreign sovereign in amity with US government is not subject to ordinary
judicial tribunals
 Libellants appealed to circuit court, which reversed district court’s decision
 District attorney appealed
Issue
W/N an American citizen can assert in an American court a title to an armed
national vessel found within the waters of the United States.
Ratio
 Decision must conform to principles of national and municipal law by
which it ought to be regulated
 World is composed of distinct sovereignties whose mutual benefit is
promoted by intercourse with each other and interchange of those good
offices which humanity dictates and its wants require
 Relaxation in practice of the absolute and complete jurisdiction within
their respective territories
 Every sovereign is understood to waive the exercise of a part of the
complete exclusive territorial jurisdiction
 One waiver is the exemption of the person of the sovereign from arrest or
detention within a foreign territory
o A foreign sovereign is not understood as intending to subject
himself to a jurisdiction incompatible with his dignity, and dignity
of his nation
o Construed to impart full security to person who has obtained it –
security need not be expressed, but implied from circumstances
of the case
 Another waiver is the immunity which all civilized nations allow to foreign
ministers
o Fiction of exterritoriality
o He is not within the jurisdiction of the sovereign at whose court
he resides, still immunity itself is granted by the governing power
of the nation to which the minister is deputed(appointed)
 Another case where sovereign cedes a portion of territorial jurisdiction is
allowing troops of foreign prince to pass through his dominions
 The rule applicable to armies does not apply to ships of war entering parts
of a friendly power
 If there is 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
o Supposed to enter ports and remain in them while allowed to
remain
 Treaties between civilized nations contain stipulations to effect in favor of
vessels driven by stress of weather or other urgent necessity
o Sovereign is bound by compact to authorize foreign vessels to
enter to find refuge and asylum in his ports
 o Not at liberty to retract
 If there is no treaty, and the sovereign permits his ports to remain open to
public ships of foreign friendly powers, they enter by his assent necessarily
implied
o No reason to distinguish such from vessels which enter by express
assent(treaty)
 Obligation of what was implied is found equal to obligation to that
which was expressed
 Treaties which provide for admission and safe departure of public vessels
entering a port from stress provide in like manner for private vessels of
nation
o Where public vessels enter port under general license, which is
implied from absence of a prohibition, they are in same condition
with merchant vessels who can’t claim any exemption from
jurisdiction of country
 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
o It may be safely 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
o It is impossible to perceive that princes who send ambassadors or
stipulate passage for his troops or asylum for his ships of war in
distress will subject his men to the jurisdiction of a foreign
sovereignty
o Sovereign port must be considered as having conceded the
privilege to the extent in which it must have been understood
to be asked
 Where, without treaty, the ports of a nation are open to private and
public ships of a friendly power, whose subjects can enter without special
license for business or amusement, a clear distinction is to be drawn
between rights accorded to private individuals and those accorded to
public armed ships
o All exemptions from territorial jurisdiction must be derived from
the consent of the sovereign of the territory
 Such consent may be implied or expressed
o When implied, its extent must be regulated by the nature of the
case
 Private individuals who enter due to business or caprice bring danger, and
they do not owe allegiance and not amenable to jurisdiction of the country
o Neither can foreign sovereign have motive to ask for exemption
which applies to them – not employed by him nor engaged in
national pursuits
o There are powerful motives for not exempting these persons
from jurisdiction of the country
 This is different in the situation of a public armed ship
o Constitutes part of the military force of her nation and acts under
command of sovereign
o Sovereign has many and powerful motives for preventing
interference of a foreign state
 There is a manifest distinction between private property and military force
supporting a foreign power
 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
o Sovereign cannot be considered as having imparted to the
ordinary tribunals a jurisdiction, which it would be a breach of
faith to exercise
o Statutory provisions ought not to be construed to give judicial
tribunals jurisdiction in a case in which the sovereign power has
impliedly consented to waive its jurisdiction
 The Exchange must be considered a national armed vessel, commissioned
by and in the service of the Emperor of France
o Having entered an American port open for her reception on terms
on which ships of war are generally permitted to enter the ports
of a friendly power, must be considered as having come into
American territory under an implied promise that while
necessarily within it and in a friendly manner, she should be
exempt from jurisdiction of the country
 Sentence of Circuit Court reversing District Court sentence is reversed and
dismissal of libel is affirmed.