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.
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
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
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.
Page 11 U. S. 135
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
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 United
States.
The question has been considered with an earnest solicitude,
that the decision may conform to those principles
Page 11 U. S. 136
of 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 and 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.
Page 11 U. S. 137
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, and 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 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.
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 license of
its sovereign, that license, 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
Page 11 U. S. 138
that the license 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 without the
consent of that other, expressed or implied, it would present a
question which does not appear to be perfectly settled -- a
decision of which is not necessary to any conclusion to which the
Court may come in the cause under consideration. If he did not
thereby expose himself to the territorial jurisdiction of the
sovereign whose dominions he had entered, it would seem to be
because all sovereigns impliedly engage not to avail themselves of
a power over their equal 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
extraterritorial, 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 exterritoriality
could not be erected and supported against the will of the
sovereign of the territory. He is supposed to assent to it.
This 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
Page 11 U. S. 139
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 conditions under which he was received as the representative of
a foreign sovereign, has surrendered the immunities granted on
those conditions, or, according to the true meaning of the original
assent, has ceased to be entitled to them.
3d. A third case in which a sovereign is understood to cede a
portion of his territorial jurisdiction is where 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
Page 11 U. S. 140
the exclusive command and disposition of this force. The grant
of a free passage therefore implies a waiver 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 through a
specified tract of country, a distinction between such general
permit and a particular license is not perceived. It would seem
reasonable that every immunity which would be conferred by a
special license would be in like manner conferred by such general
permit.
We have seen that a license to pass through a territory implies
immunities not expressed, and it is material to inquire why the
license 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 dominion 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 license 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
Page 11 U. S. 141
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 license.
But the rule which is applicable to armies does not appear to be
equally applicable to ships of war entering the parts 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 ensue from admitting a ship of war without
special license 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 necessity. 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 license which he
is not at liberty to retract. It would be difficult to assign a
reason for withholding from a license 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 their case from that of
vessels which enter by express assent.
Page 11 U. S. 142
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 evade.
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 license 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 are
applicable to public and private ships, and since it is admitted
that private ships entering without special license 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
Page 11 U. S. 143
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, and 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 license 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.
Page 11 U. S. 144
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 and 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
license, 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 objects from being defeated by the
interference of a foreign state. Such interference cannot take
place without affecting his power and his dignity. The implied
license, 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 exemption 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
Page 11 U. S. 145
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
Page 11 U. S. 146
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 courts 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 for 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 armed 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
inquiry 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
Page 11 U. S. 147
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 inquire whether this title has been extinguished by an
act the validity of which is recognized 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 United 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 United States.
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.
