Breyer, J., dissenting
tion within its own territories, must be traced up to the consent of the nation itself” and “can flow from no other legitimate source.” Ibid. (emphasis added).
The Court ultimately held in Schooner Exchange that the United States had consented implicitly to give immunity to the French warship. See id., at 147. But that was because “national ships of war, entering the port of a friendly power open for their reception, [we]re to be considered as exempted by the consent of that power from its jurisdiction.” Id., at 145–146. And the Chief Justice was careful to note that this implication of consent could be “destroy[ed]” in various ways, including by subjecting the foreign nation “to the ordinary tribunals.” Id., at 146.
Ten years later, in The Santissima Trinidad, 7 Wheat. 283 (1822), this Court unanimously reaffirmed Schooner Exchange’s conclusion that foreign sovereign immunity was not an absolute right. The Court in Santissima Trinidad was called upon to determine whether the cargo of an Argentine ship, found in Baltimore Harbor, was immune from seizure. The ship’s commander asserted that Argentina had an absolute right to immunity from suit, claiming that “no sovereign is answerable for his acts to the tribunals of any foreign sovereign.” Id., at 352. But Justice Joseph Story, writing for the Court, squarely rejected the “notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign, when it came within his territory.” Ibid. Rather, any exception to jurisdiction, including sovereign immunity, “stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations.” Id., at 353. Accordingly, Justice Story explained, the right to assert sovereign immunity “may be withdrawn upon notice at any time, without just offence.” Ibid. (emphasis added). Justice Story then held that the Argentine ship’s cargo was not immune from seizure. Id., at 354.
