The case derived from "an interesting and revealing incident" that occurred during the "Quasi War" with France at the end of the 18th century.[1] The frigate USS Boston commanded by captain George Little captured a Danish vessel, the Flying Fish, by order of the Secretary of the Navy on behalf of President John Adams "to intercept any suspected American ship sailing toorfrom a French port."[2] The Congress, however, had passed a law authorizing the navy 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 and not to a French port. Captain Little was declared to be liable for executing a command that was illegal. Little appealed to the Supreme Court, where the decision was upheld. Chief Justice John Marshall wrote "Is the officer who obeys [the President's order] liable for damages sustained by this misconstruction of the act, or will his orders excuse him? ... the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass."[3]
The legislative branch makes laws and the executive branch enforces the laws. The Act of Congress provided only 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 be captured 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.
Glennon, Michael J. (1988). "Two Views of Presidential Foreign Affairs Power: Little v. BarremeorCurtiss-Wright?". Yale Journal of International Law. 13 (5): 5–20. SSRN2620803.
