Many people know the first Supreme Court decision to declare an act of Congress unconstitutional (It’s Marbury, of course), but few people could identify the Court’s first decision declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our brief war with France, authorizing the Navy to seize ships bound for French ports. The president’s order was inconsistent with an act of Congress declaring the government to have no such authorization. After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams’s order, the owners of the ship sued the captain for trespass in U. S. maritime court. On appeal, C. J. Marshall rejected the captain’s argument that he could not be sued because he was just following presidential orders. The Court noted that commanders “act at their own peril” when they obey invalid orders–and the president’s order was outside of his powers, given the congressional action. Vice President Thomas Jefferson opposed the 1799 order of President Adams allowing the seizing of ships.1
Brief Fact Summary. A Danish vessel, The Flying Fish, with neutral Danish property on board was seized by the United States frigate Boston, commanded by Captain Little (Little), and brought into the port of Boston and libeled as an American vessel that had violated the non-intercourse law.
Synopsis of Rule of Law. The government itself cannot be sued, but the offending government officials are liable as ordinary tortfeasors in the absence of valid authorization.
Facts. During hostilities with France, a non-intercourse act was annually passed that allowed the United States President to instruct the commanders of armed vessels to stop and seize ships bound for France. Such ships would forfeit their cargo and face prosecution. A separate order given by the executive enjoined seizure of American ships sailing from France, but this was not authorized by the Act of Congress. The Flying Fish was on a voyage from, and not to, a French port when it was seized; and it was Danish and not American. The judge before whom the case was tried directed a restoration of the vessel and cargo as neutral property, but refused to award damaged because, in his opinion, there was probable cause to suspect the ship was American. The circuit court reversed because the Flying Fish was on a voyage from, not to, a French port, and therefore would not have been liable to capture even if American.
Issue. Is an officer who obeys orders liable for damages sustained by a misconstruction of an act, or will his orders excuse him?
Held. Affirmed the circuit court, with costs. The fact that Captain Little was following orders did not change the nature of the transaction, or legalize his action which without those orders would have been a plain trespass. Little was liable to the owner of the Flying Fish for damages. Dissent. None. Concurrence. None.
Discussion. This case softened the impact of sovereign immunity to allow government officials to be sued as ordinary tortfeasors in the absence of valid legal authorization. There may be sovereign immunity, but there is no official immunity.2
