Although more than one hundred and fifty years old, the case vivifying the concept of sovereign immunity, The Schooner Exchange v. M cFaddon, is still repeatedly referred to in judicial opinions. Significantly, it is cited not for purposes of distinction or historical perspective, but rather, is employed as a present underpinning for sovereign immunity, even though the political and social circumstances of today differ considerably from those existing in 1812.
Subsequent cases, however, while often justifying the conclusions reached by references to Marshall's discussion in The Schooner Exchange, have intertwined into the concept of sovereign immunity notions distinct from Chief Justice Marshall's rationale. Hence the present status of the doctrine of sovereign immunity is not the end product of, or even a stage in, the development of a freely evolving legal concept. Instead it is an amalgam of several distinct notions.
As a prelude to a discussion of the concept of sovereign immunity it will be helpful to initially sketch certain distinctions so that the concept's historical development may be better understood. Two basic theories of sovereign immunity have struggled for ascendency in the cases and in the discourse of commentators. Traditionally, sovereign immunity has been regarded as either absolute or restrictive. The former notion is the simpler of the two. Under the absolute theory the sole inquiry is whether or not the entity being sued is a foreign sovereign. If so, the court will dismiss the action. The restrictive theory is a refinement of the absolute theory. Not only must the defendant be a foreign sovereign, but the sovereign must also be acting in its public capacity and not its private capacity. These two formulations represent the basic approaches to delineating the substantive content of the doctrine.
It is also appropriate to note the fact that an entirely distinct question may arise. In what situations will a court be ousted of its jurisdiction to try a claim of sovereign immunity? The resolution of this question lies in a consideration of the constitutional ramifications of the interrelationship of the judiciary and the executive's control of foreign affairs.
This Comment will trace the historical development of the two substantive theories of sovereign immunity, and analyze the case law that has developed. The second point of departure will be the interrelationship between the judiciary and the executive, with special emphasis on whether the executive can have any effect on the judicial formulation of the substantive doctrine of sovereign immunity.
Daniel T. Murphy, Comment, The American Doctrine of Sovereign Immunity: An Historical Analysis, 13 Vill. L. Rev. 583 (1968)