The Flying Fish case - Little v. Barreme

ISU Constitutional Law professor Dave Adler came and talked to Idaho Falls' Drinking Liberally chapter recently. In the midst of his presentation he mentioned Little v. Barreme.

In 1804, the Supreme Court held that it is Congress's job to DIRECT the war, and the President's job to manage within their instructions. Whether you think shareholders and CEO or Publisher and Editor or Owner and Manager... Bush is clearly wrong here. But don't just take my word for it. Here's a few other perspectives. Wikipedia. One of several columns that came up when I googled 'Barreme'. A column from George Mason University. The court decision itself. Click, if you're up to some pretty dense legalese. Click for the case that disproves President Bush's Unitary (Imperial) Executive claims. Heck, click if you hate signing statements.

(Crossposted to DailyKos, if simply to finally replace Who is Kos, and why's he such an Idiot (Sept. 2005) as my most recent diary)

Little v. Barreme

Supreme Court of the United States
Decided February 27, 1804
Full case name: George Little, et al. v. Barreme, et al.

Citations: 6 U.S. 170; 2 L. Ed. 243; 1804 U.S. LEXIS 255; 2 Cranch 170

Chief Justice: John Marshall
Associate Justices: William Cushing, William Paterson, Samuel Chase, Bushrod Washington, Alfred Moore
Majority by: Marshall
Joined by: unanimous
Laws applied: U.S. Const.

Little v. Barreme, 6 U.S. 170 (1804) was a 1804 decision of the United States Supreme Court which found that the President of the United States does not have "inherent authority" or "inherent powers" which allow him to ignore a law passed by Congress.


Pro DN, Pres order overstepped a congressional act, such action by president was not constitutional.


The frigate USS Boston commanded by captain George Little captured a Danish vessel, the Flying Fish, under orders of the Secretary of the Navy on behalf of President John Adams. The capture was under a law passed by Congress to seize "vessels or cargoes [that] are apparently, as well as really, American" and "bound or sailing to any [French] port" in an attempt to prevent American vessels transporting goods to France. The Flying Fish was sailing from, not to, a French port. Captain Little was declared to be liable for executing a command that was illegal in nature. Little appealed the decision to the Supreme Court.

Procedural history

1. District Court, found for Petitioner
2. Circuit Court of Massachusetts, reversed, found for Respondent
3. United States Supreme Court, affirmed, found for Respondent


1. Whether an order of the President, which in effect attempts to make law, can override an act of Congress.
2. Officers are responsible for execution of illegal commands, despite nature of military chain of command.


No, an order of the President which is in contradiction with an act of Congress is illegally put forth.


The legislative branch makes laws and the executive branch enforces the laws. The Act of Congress only provided for the capture of vessels traveling to France. "The Flying Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable to capture on the high seas." The Act limited the president’s authority by only allowing the capture of certain vessels. The President acted contrary to these limitations.

Inherent Powers

The Justice Department has mischaracterized the nature of the Little v. Barreme decision, when it incorrectly said that the basis for this decision was that the President had "gone beyond the terms of the statute," and thus had merely over-reached his authority.

The exact words of the Justice Department are, "The Supreme Court held that the orders given by the President could not authorize a seizure beyond the terms of the statute and therefore that the seizure of the ship not in fact bound to a French port was unlawful. See 6 U.S. at 177-78"

History refutes... by Louis Fisher

Marshall never implied that the president was the leading voice in shaping and articulating foreign policy. At no time during his service as a member of Congress, secretary of state, or chief justice did Marshall ever argue for inherent or independent power of the president to make foreign policy.

To the contrary, in Talbot v. Seeman (1801) he understood that Congress possessed the power to take the country to war: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry.” And in Little v. Barreme (1804) he stated that when a presidential proclamation in time of war conflicts with a statute enacted by Congress, the statute prevails....

Findlaw:( from Chief Justice Marshall's opinion, held unanimously)

A copy of this act was transmitted by the secretary of the navy to the captains of the armed vessels, who were ordered to consider the fifth section as a part of their instructions. The same letter contained the following clause. 'A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies, to prevent all intercourse, whether direct or circulitous, between the ports of the United States and those of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you.'

These orders, given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin (d2: prohibit) the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause [6 U.S. 170, 179] which existed to induce a suspicion that the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral.

I confess the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.

It becomes therefore unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American, would excuse captain Little from damages for having seized and sent her into port, since had she actually been an American, the seizure would have been unlawful.

If you're still reading, check out UMKC's recap of Marbury v. Madison, since it mentions Barreme. Or check out this blog entry, Amerloque: Disconnects:

Many people know the first Supreme Court decision to declare an act of Congress unconstitutional (It's 'Marbury v Madison', 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,

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Glad to see ...

... Dr. Adler is still around. I enjoyed his classes at ISU very much. He's also spot on: how about giving war making powers back to Congress where they belong? What a novel concept!

In IF, on the Readers Board, still with ISU

Dr. Adler's still working for ISU, but moved a couple years ago to Idaho Falls (his wife is from up here, I think he said). He did a few awesome thousand-word editorials on the Journal last year, and has recently been writing editorials in the Post Register, including one today.