Remembering the Significance of the Landmark Case of Little v. Barreme as We Mark Veterans Day
November 12, 2025
This week’s nationwide speeches and programs honoring military veterans reminds us of the courage of those who risked and sacrificed their lives on behalf of American ideals, principles, and security. This grand federal holiday invites civic contemplation of the circumstances, events, and decisions that led to the battlefield, and the sometimes difficult and complicated choices that men and women in uniform have been required to make when ordered by their superiors to carry out actions of doubtful legality.
The Supreme Court’s landmark ruling in Little v. Barreme (1804) arose in the context of the Quasi-War – a limited conflict between the United States and France from 1798 to 1800. The case raised a host of important constitutional issues at the intersection of congressional and presidential power in matters of war and peace – some fully resolved, others not – that continue to resonate today, such as in President Donald Trump’s order to destroy fishing boats off the coast of Venezuela. While his orders are not the focus of this column, they have violated statutory, constitutional, and international law. Of particular interest here is the potential liability of military personnel for carrying out illegal acts.
The Court, in a trio of cases in the early days of the 19th Century, had decided that the “whole powers of war” are vested in Congress. Congress alone possessed the authority to declare total war or limited, that is, “imperfect” war, and with it the authority to determine the scope of military hostilities. The Court said the president has no authority to initiate hostilities on behalf of the American people. In an opinion written by Chief Justice John Marshall, the Court held in Barreme, that the president, as commander in chief, is subject to statutory commands, and thus obedience to a presidential order that violates a statute exposes an officer to liability for damages inflicted.
A 1799 statute authorized the president to seize vessels sailing “to” French ports. President John Adams exceeded his statutory authority by issuing an order that directed American ships to capture vessels sailing “to or from” French ports. Captain George Little of the U.S. frigate, Boston, carried out Adams’s order and seized a Danish vessel sailing from a French port. The owner of the Danish vessel sued for damages, and the case went to the Supreme Court.
Chief Justice Marshall conceded that the case was a difficult one. At first blush, he admitted it was clear that although Adams had violated the law and his duty under the Take Care Clause of Article II to “take care that the laws be faithfully executed,” which meant that he “could not give a right,” yet they might still excuse a military officer from damages. Marshall assumed an “implicit obedience” to “orders of superiors,” which, he said, “is indispensably necessary to every military system.” This reasoning would justify Little’s actions. On further reflection, however, Captain Little could be sued for damages. Marshall admitted that he had been “influenced” by his “brethren” that Adams’s instructions “cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.” Since Adams’s instructions collided with the act of Congress, they were illegal and could neither justify the seizure nor excuse Little from damages.
But a sympathetic Congress in 1807 passed a private bill to reimburse Little for the damages against him. Congress likely concluded that the law had failed to clarify the difference between lawful and unlawful orders. The First Congress had enacted in 1789 a statute that required military personnel “to observe and obey orders of the President of the United States.” In 1799, Congress passed a law that declared, “any officer who shall disobey the orders of his superior . . . on any pretense whatsoever” shall be subject to death or other punishment. In 1800, Congress clarified by statute the duty of officers to obey commands. They were not required to obey all orders and commands, but only those that are lawful. Indeed, they are prohibited from carrying out “unlawful orders.”
At bottom, as Captain Little learned, the duties of military officers are governed by statute and cannot be altered by the commander in chief. If the president possessed authority to ignore or revise statutes, he would, by definition, cease to be subordinate to the law, which would scuttle our constitutional jurisprudence.
-David Adler