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Attorney General Bradford’s Opinion and the Alien Tort Statute

Published online by Cambridge University Press:  20 January 2017

Curtis A. Bradley
Curtis A. Bradley*
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Extract

In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. In the opinion, Bradford concluded that “[s]o far ... as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States.” He also expressed the view that the actors could be prosecuted for crimes on the high seas, while noting that “some doubt rests on this point” in light of the language of the relevant criminal statute. Finally, he stated—in an obvious reference to the ATS—that

there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States . . . .

The Bradford opinion contains one of the few early historical references to the ATS, so it not surprisingly has received a lot of attention. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions. Reliance on the opinion has increased since the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, in which the Court cited the opinion in support of the proposition that the ATS provides jurisdiction over certain common law causes of action derived from the law of nations. As an illustration of its perceived significance, both sides discussed the opinion in the oral argument before the Supreme Court in the first hearing in the pending ATS case, Kiobel v. Royal Dutch Petroleum Co.

Type
Agora: Kiobel
Information
American Journal of International Law , Volume 106 , Issue 3 , July 2012 , pp. 509 - 530
Copyright
Copyright © American Society of International Law 2012

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References

1 See Breach of Neutrality, 1 Op. Att’y Gen. 57 (1795) [hereinafter Bradford opinion].

2 Id. at 58.

3 Id. at 58–59. The statute in question, the “Act in addition to the act for the punishment of certain crimes against the United States,” was enacted in June 1794 and is also known as the “Neutrality Act.” 1 Stat. 381 (1794). The Neutrality Act prohibited various actions by U.S. citizens, including the conduct of hostilities against nations with which the United States was at peace. Its provisions were generally limited to conduct within the “territory or juris diction” of the United States.

4 As is well known, the ATS originated as a provision in section 9 of the Judiciary Act of 1789 and provided that the federal district courts would “have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” 1 Stat. 73, 77 (1789). The current (similarly worded) version of the ATS is set forth at 28 U.S.C. §1350.

5 Bradford opinion, supra note 1, at 59.

6 The ATS is also mentioned briefly in several early district court decisions. See Bolchos v. Darrel, 3 F.Cas. 810, 810 (D.S.C. 1795) (No. 1,607) (suggesting that the ATS provided an alternate basis for jurisdiction, in addition to admiralty jurisdiction, in a dispute with a U.S. citizen over ownership of slaves on board a captured Spanish ship seized by a French captain and brought into a U.S. port); M’Grathv. Candalero, 16F.Cas. 128, 128 (D.S.C. 1794) (No. 8,810) (reasoning that a U.S. citizen suing an alien for a tort can seek attachment, and noting by analogy that “[i]f an alien sue here for a tort under the law of nations ora treaty of the United States, against a citizen of the United States, the suit will be sustained”); Moxon v. The Fanny, 17 F.Cas. 942, 948 (D. Pa. 1793) (No. 9,895) (noting in passing, in a case involving the seizure in U.S. waters of a British ship by a French privateer, that a suit for restitution of property was not a suit for a “tort only” under the terms of the ATS).

7 See infra pan I.

8 See 542 U.S. 692, 721 (2004).

9 See Transcript of Oral Argument at 10-11, 30, Kiobelv. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 28, 2012). The Kiobel case involves the issue of corporate liability under the ATS. After the argument, the Court directed that the case be reargued during the October 2012 Term and that the parties address the following additional issue: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Kiobel v. Royal Dutch Petroleum Co., 132 S.Ct. 1738, 1738 (Mar. 5, 2012). A continually updating set of documents on the Supreme Court proceedings in Kiobel is available at http://www.scotusblog.com/case-files/cases/kiobel-v-royal-dutch-petroleum-et-al.

10 Bradford opinion, supra note 1, at 58.

11 Both documents—the letter from George Hammond to Edmund Randolph (June 25, 1795) (Hammondletter) and the memorial (Macaulay/Tilley memorial), included here as appendices 1 and 2, respectively—are hand written and contained in the U.S. National Archives II in College Park, Maryland, on Microfilm M-50, Roll 2, in the Department of State Records of “Diplomatic Correspondence, Notes to the Department from Foreign Legations and Ministers and Embassies in Washington.” As this essay was being prepared for publication, the petitioners in Kiobel submitted a supplemental brief that also contains transcriptions of these documents. See Petitioners’ Supplemental Opening Brief, apps. A, B, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (June 6, 2012).

12 Huber, Ulrich, De Conflictu Legum Diversarum in Diversis Imperils, cited and quoted in Lorenzen, Ernest G., Huber’sDe Conflictu Legum, 13 Ill. L. Rev. 375, 376, 403 (1918-19)Google Scholar.

13 Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic §20 (1834).

14 Rose v. Himely, 8 U.S. (4 Cranch) 241, 279 (1807) (emphasis added); see also The Apollon, 22 U.S. 362, 370 (1824) (“The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens?) (emphasis added).

15 See, e.g., United States v. Smith, 18 U.S. (5 Wheat.) 153, 161 (1820) (referring to piracy as “an offence against the universal law of society, a pirate being deemed an enemy of the human race”); United States v. Klintock, 18 U.S. (5 Wheat.) 144, 152 (1820) (stating that persons committing piracy “are proper objects for the penal code of all nations”); see also Kontorovich, Eugene, The Piracy Analogy: Modern Universal Jurisdiction ‘s Hollow Foundation, 45 Harv. Int’l L.J. 183, 190 (2004)Google Scholar (“For as long as sovereignty-based jurisdictional principles have existed (that is, at least since the early seventeenth century), any nation could try any pirates it caught, regardless of the pirates’ nationality or where on the high seas they were apprehended.”).

16 See Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004).

17 Congress has the constitutional authority to “define and punish piracies and felonies committed on the high seas.” U.S. Const. Art. I, §8, cl. 10 (emphasis added). The federal criminal piracy statute is therefore not surprisingly limited to conduct on the high seas. 18 U.S.C. § 1651. See also 4 William Blackstone, Commentaries on the Laws of England 72 (1769) (“The offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there.”). The original federal piracy statute, enacted in 1790, extended not only to the high seas but also to “any river, haven, basin or bay, out of the jurisdiction of any particular state.” An Act for the Punishment of Certain Crimes Against the United States §8, 1 Stat. 112, 113-14 (1790). Modern international law defines piracy as encompassing acts either on the high seas or “in a place outside the jurisdiction of any State.” See, e.g., UN Convention on the Law of the Sea, Art. 101(a), opened for signature Dec. 10, 1982, 1833 UNTS 397.

18 See, e.g., Morrison v. Nat’l Ausd. Bank Ltd., 130 S.Ct. 2869, 2877 (2010); Equal Emp’t Opportunity Comm’n v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). The presumption against extraterritoriality has been applied by U.S. courts since early in the nation’s history, at least with respect to the extraterritorial conduct of foreign citizens. See, e.g., United States v. Palmer, 16U.S. (3 Wheat.) 610, 632-34 (1818) (holding that the federal piracy statute should not be construed to apply to a robbery committed on the high seas by foreign citizens on board a foreign ship).

19 Morrison, 130 S.Ct. at 2877.

20 Arabian American Oil, 499 U.S. at 248.

21 F. Hoffmann-La Roche Ltd. v. Empagran, 542 U.S. 155, 164 (2004).

22 See, e.g., In re South African Apartheid Litig., 617 F.Supp.2d 228, 246-47 (S.D.N.Y. 2009) (“The [ATS] does not by its own terms regulate conduct; rather it applies universal norms that forbid conduct regardless of territorial demarcations or sovereign prerogatives.”); see also Dodge, William S., Alien Tort Litigation and the Prescriptive Juris diction Fallacy, 51 Harv. Int’l L.J. Online 35, 37 (2010)Google Scholar (“Courts do not apply U.S. substantive law in ATS cases; they apply customary international law.”), at http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ-Online_51_Dodge.pdf. But see Ramsey, Michael D., International Law Limits on Investor Liability in Human Rights Litigation, 50 Harv. Int’l L.J. 271, 298 (2009)Google Scholar (“The decision whether to allow individuals to make claims in court, as opposed to offering some other kind of remedy, lies with individual nations. Thus an individual judicial claim based on customary international law depends on a national act to create liability and a right to sue.”).

23 See, e.g., Filártigav. Peña-Irala, 630 F.2d 876, 885 (2d Cir. 1980). When adjudicating foreign torts, however, courts do not necessarily apply U.S. law. Under the approach of the Restatement (First) of Conflict of Laws (1934), the law where the tort occurred would normally be applied, pursuant to the principle of lex bei delicti. Id. §377. Under the approach of the Restatement (Second) of Conflict of Laws (1969), the law of the place with the “most significant relationship to the occurrence and the parties” would apply. Id. §145; see Sosa v. Alvarez-Machain, 542 U.S. at 707-10 (noting that under both of these approaches foreign law will often be applied). While the district court in Filartiga looked in part to foreign law in adjudicating the tort in that case, see 577 F.Supp. 860, 864 (E.D.N.Y. 1984), most subsequent ATS decisions have not done so, and the Supreme Court in Sosa appeared to suggest that the law governing the cause of action in an ATS case is coming from U.S. federal common law, not the law of the place where the tort occurred. See infra text accompanying note 99.

24 The treaty for the International Criminal Court limits the Court’s jurisdiction to “natural persons.” Rome Statute of the International Criminal Court, Art. 25(1), July 17, 1998, 2187 UNTS 90. The French delegation proposed granting the ICC jurisdiction over corporations and other “juridical” persons, but the proposal was rejected. See Eser, Albin, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court: A Commentary 767, 779 (Cassesse, Antonio et al. eds., 2002)Google Scholar.

25 See, e.g., Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Art. 2, Dec. 17, 1997, S. Treaty Doc. No. 105-43, 37 ILM 1 (“Each Partyshall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official.”).

26 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, para. 44, UN DOC. A/Hrc/4/35 (Feb. 19, 2007), at http://ap.ohchr.org/documents/alldocs.aspx?doc_id=12900.

27 See, e.g., Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019 (7th Cir. 2011 ) (“It is neither surprising nor significant that corporate liability hasn’t figured in prosecutions of war criminals and other violators of customary international law. That doesn’t mean that corporations are exempt from that law.”); see also Brief for the United States as Amicus Curiae Supporting Petitioners at 20, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (2012) (“At the present time, the United States is not aware of any international-law norm, accepted by civilized nations and defined with the degree of specificity required by Sosa, that requires, or necessarily contemplates, a distinction between natural and juridical actors.”). But see Ku, Julian G., The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking, 51 Va. J. Int’l L. 353, 355 (2010)Google Scholar (“Customary, as opposed to treaty-based, international law has never recognized the imposition of direct duties on private corporations.”).

28 See, e.g., Doe v. Exxon Mobil Corp, 654 F.3d 11, 41 (D.C. Cir. 2011) (reasoning that “corporate liability differs fundamentally from the conduct-governing norms at issue in Sosa, and consequently customary international law does not provide the rule of decision”); Flomo, 643 F.3d at 1019 (“We keep harping on criminal liability for violations of customary international law in order to underscore the distinction between a principle of that law, which is a matter of substance, and the means of enforcing it, which is a matter of procedure or remedy.”); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 175 n.33 (2d Cir. 2010) (Levai, J., concurring only in the judgment) (“[International law outlaws certain forms of abhorrent conduct and in general leaves to individual nations how to enforce the proscription.”). In a much discussed, but cryptic, footnote in Sosa, the Supreme Court stated that a “related consideration” in deciding whether to allow a claim under the ATS “is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” 542 U.S. at 732 n.20. This footnote could be read to suggest (for example) that ATS suits can be brought against corporations only to the extent that international law specifically applies to them, or that the ATS will support only direct liability for corporations, not secondary liability such as for aiding and abetting.

29 Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in Support of the Respondents at 31, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 3, 2012); see also Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Neither Party at 24, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (June 13,2012) (“Because they regard the choices of legal processes and rem edies as such important sovereign rights, the Governments object to the efforts of U.S. litigators and judges to bypass the legal systems of other sovereigns by deciding civil cases involving foreign parties where there is no significant nexus to the U.S.”).

30 Brief of the Federal Republic of Germany as Amicus Curiae in Support of Respondents at 15, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 2, 2012); see also Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance at 17, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (June 2012) (“Such ATS suits have often triggered foreign government protests.”).

31 542 U.S. at 729, 732-33.

32 See id. at 698 (noting that “the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial”).

33 Id. at 738 (declining to allow claim of short-term arbitrary arrest because the conduct “violates no norm of customary international law so well defined as to support the creation of a federal remedy”). In a brief signed by both the Justice Department and the State Department, the U.S. government argued in Sosa that “ [njothing in [the ATS], or in its contemporary history, suggests that Congress contemplated that suits would be brought based on conduct against aliens in foreign lands.” Brief for the United States as Respondent Supporting Petitioner at 48, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339), at http://www.justice.gov/osg/briefs/2003/3mer/2mer/2003-0339.mer.aa.pdf.

34 See 542 U.S. at 731 (“The position we take today [that is, not requiring a separate statutory cause of action] has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filártiga v. Peña-Irala, 630 F.2d 876 (Ca2 1980) . . . .”); id. at 732 (citing Filártiga for the proposition that the Court’s announced standard for recognizing ATS claims “is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court”). In Filartiga the Second Circuit allowed two Paraguayan citizens to sue another Paraguayan citizen under the ATS for torture committed in Paraguay.

35 Id. at 727-28 (emphasis added).

36 Bradford opinion, supra note 1, at 58.

37 Id. at 58-59.

38 See supra notes 2-5 and accompanying text.

39 See, e.g., Sarei v. Rio Tinto PLC, 671 F.3d 736, 781 (9th Cir. 2011) (McKeown, J., concurring in part and dissenting in part) (“At the time of its enactment, the ATS was intended to encompass conduct both within and beyond the United States, including both crimes against foreign ambassadors in the United States and piracy. . . . An opinion by Attorney General Bradford in 1795—a mere six years after adoption of the ATS—confirms this interpretation.”); see also Casto, William R., The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 503 (1986 Google Scholar) (“The plunder of Sierra Leone is of particular importance because the Attorney General’s opinion—like much of the modern litigation under [the ATS]—dealt with a transitory tort action arising out of events in a foreign country.”).

40 See, e.g., Kiobel v. Royal Dutch Petroleum Co., 621 F.3d at 142 n.44 (“In concluding that the Sierra Leone Company could bring suit against the American individuals involved in the French attack on the colony, Attorney General Bradford circumscribes his opinion, appearing to conclude that the Company could not bring suit for the actions taken by the Americans in a foreign country, but rather, could sue only for the actions taken by the Americans on the ‘high seas.’”); see also Doe v. Exxon Mobil Corp, 654 F.3d 11, 81 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“To the extent an opinion of one Attorney General matters to judicial interpretation of the ATS, the Brad ford opinion supports the view that the ATS applies to conduct in U.S. territory and on the high seas, but it does not support the conclusion that the ATS extends to conduct in foreign countries.”).

41 See Sarei, 67l F.3dat811 (Kleinfeld, J., dissenting) (“Attorney General Bradford’s opinion does not support federal jurisdiction under the Alien Tort Statute for foreign-cubed cases [that is, cases where the plaintiff and defendant are non-U.S. citizens and the conduct takes place abroad].”).

42 Exxon Mobil, 654> F.3d at 23-24.

43 See Restatement (Third) of the Foreign Relations Law of the United States, ch. 1, introductory note (1987) (observing that international law “deals with the conduct of nation-states and their relations with other states, and to some extent also with their relations with individuals, business organizations, and other legal entities”); 1 Oppenheim’S International Law §6 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (“States are the principal subjects of international law.”).

44 See Restatement (Third) of the Foreign Relations Law of the United States, supra note 43, §702 & cmt. b. For example, the UN Convention Against Torture covers only torture “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 113.

45 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

46 Id. at 240.

47 Id. at 244-45.

48 Id. at 245.

49 One of the first ATS suits brought against a corporate defendant was Doe I v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal. 1997), aff’d in part, rev’d in part, 395 F.3d 932 (9th Cir. 2002), vacated, 395 F.3d 978 (9th Cir. 2003).

50 For corporate settlements, see, for example, Wuerth, Ingrid, Wiwa v. Shell: The $15.5 Million Settlement, ASIL Insights (Sept. 9, 2009 Google Scholar), at http://www.asil.org/insights090909.cfm.

51 Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 182 (1994); see also Stoneridge Inv. Partners v. Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2008) (reaffirming Central Bank); Boim v. Holy Land Found, for Relief & Dev., 549 F.3d 685, 689 (7th Cir. 2008) (Posner, J.) (en banc) (“[Statutory silence on the subject or secondary liability means there is none.”).

52 Central Bank, 511 U.S. at 181.

53 See, e.g., Doe v. Exxon Mobil Corp, 654 F.3d 11, 30-32 (D.C. Cir. 2011); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 282 (2d Cir. 2007) (Katzmann, J., concurring); see also Kobei v. Royal Dutch Petroleum Co., 621 F.3d 111, 130 (2d Cir. 2010) (“[I] t was only because we looked to international law that we were able to recognize a norm of aiding and abetting liability under the ATS.”). For an argument that judicial allowance of aiding and abetting liability under the ATS is inconsistent with Sosa, see Bradley, Curtis A., Goldsmith, Jack L. & Moore, David H., Sosa, , Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 926-29 (2007)Google Scholar.

54 See, e.g., Brief for the United States as Amicus Curiae in Support of Petitioners at 8, Am. Isuzu Motors, Inc. v. Ntsebeza, 5 53 U.S. 1028 (2008) (No. 07-919) (“ [T]he creation of civil aiding and abetting liability is a legislative act separate and apart from the recognition of a cause of action against the primary actor, and one that the courts should not undertake without congressional direction.”), at http://www.justice.gov/osg/briefs/2007/2pet/5ami/2007-0919.pet.ami.pdf.

55 Compare, for example, Exxon Mobil, 654 F.3d at 39 (knowledge standard), with Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (purpose standard), and Aziz v. Alcolac, Inc., 658 F.3d 388, 398-401 (4th Cir. 2011) (same).

56 See, e.g., Exxon Mobil, 654 F.3d at 29 (“[T]he 1795 opinion of Attorney General Bradford stated that civil recovery could be had in federal court against U.S. citizens who ‘aided and abetted’ the French privateer fleet in its plunder of Sierra Leone.”); Khulumani, 504 F.3d at 288 n.5 (Hall, J., concurring) (citing Bradford opinion in support of the proposition that “the Founding Generation nevertheless understood the [ATS] encompassed aiding and abetting liability”); Almog v. Arab Bank PLC, 471 F.Supp.2d 257, 286 n.34 (E.D.N.Y. 2007) (citing Bradford opinion for the proposition that “[g]oing back over 200 years, contemporaneous with the enactment of the ATS, aider and abettor liability was contemplated under the ATS”);Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164, 1174 n.6 (C.D. Cal. 2005) (contending that “the 1795 opinion of then-Attorney General William Bradford supports the conclusion that there is aiding and abetting liability under the ATS”).

57 Bradford opinion, supra note 1, at 58 (emphasis added).

58 Khulumani, 504 F.3d at 329 (Korman, J., dissenting).

59 For additional discussion of these events, see Fyfe, Christopher, A History of Sierra Leone 59–61 (1962)Google Scholar.

60 An earlier British settlement had been established in Sierra Leone in 1787, but the settlement had failed due to disease, crop failure, and hostility from the indigenous population. See Hochschild, Adam, Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves 174–77 (2005)Google Scholar; see also Substance of the Report Delivered by the Court of Directors of the Sierra Leone Company To the General Court of Proprietors, on Thursday the 27th March, 1794, at 3-8 (describing founding of the Sierra Leone colony).

61 For discussion of these events, see William R. Casto, Foreign Affairs and the Constitution in the Age of Fighting Sail (2006), and Hyneman, Charles S., The First American Neutrality: A Study of the American Understanding of Neutral Obligations During the Years 1792 to 1815(1974)Google Scholar.

62 The U.S. citizens, David Newell and Peter Mariner, were involved in the slave trade, and the Sierra Leone col only had apparently given sanctuary to two slaves who had escaped from a ship belonging to Newell. See Gould, Elica H., Among the Powers of the Earth: the American Revolution and the Making of A New-World Empire 156 (2012)Google Scholar.

63 Letter from Lord William Grenville, Foreign Secretary, to John Jay, Special Envoy to Great Britain (Feb. 10, 1795), in The Papers of John Jay, at http://www.columbia.edu/cu/lweb/digital/jay/.

64 Macaulay kept a journal for the benefit of the chairman of the Sierra Leone Company, and his journal entry for November 15, 1794, notes that Tilley had proposed that Macaulay “should join him in a memorial to the [British] Secretary of State respecting the conduct of the Americans on the coast.” Life and Letters of Zachary Macaulay 81 (1900).

65 Letter from John Jay, Special Envoy to Great Britain, to Lord William Grenville, Foreign Secretary (Feb. 15, 1795), in The Papers of John Jay, supra note 63.

66 See e-mails from Hoth, David, Co-editor, The Papers of George Washington, to Alayan, Kristina and Bradley, Curtis (May 15, 2012 Google Scholar) (on file with author). This report was issued in March 1794, before the attacks in question. The subsequent 1795 Court of Directors report does discuss the attacks, but the report was not issued until late February 1795, after Jay had sent his letter to Washington. Interestingly, the 1795 report contains a footnote suggesting that the fleet that carried out the attack may not have had a regular commission from the French government. See Sub Stance of the Report of the Court of Directors of the Sierra Leone Company, Delivered to the General Court of Proprietors, on Thursday the 26th of February, 1795, at 14 n.*; see also Fyfe, A History of Sierra Leone, supra note 59, at 59 (“[T]he filthy, ragged crews represented the Jacobin terror already suppressed in France a few months earlier.”); George, Claude, The Rise of British West Africa 34 (1904)Google Scholar (noting that the 1795 report “discloses the fact that the attack upon Sierra Leone was not made by the French Government, but by a company of privateers”).

67 See Letter from John Jay, Special Envoy to Great Britain, to George Washington, President (Feb. 25, 1795), in George Washington Papers at the Library of Congress, at http://memory.loc.gov/ammem/gwhtml/.

68 Letter from Lord William Grenville, Foreign Secretary, to George Hammond, His Majesty’s Minister Plenipotentiary (Apr. 15, 1795), British National Archives, FO [Foreign Office] 5/9.

69 Id.

70 Id.

71 See supra notes 10-11 and accompanying text.

72 Note dated June 26, 1795, U.S. National Archives II, Department of State Records of “Miscellaneous Correspondence—Domestic Letters,” Microfilm M40, Roll 8.

73 Note dated June 30, 1795, U.S. National Archives II, Department of State Records of “Miscellaneous Correspondence—Domestic Letters,” Microfilm M40, Roll 8.

74 Letter from George Hammond, His Majesty’s Minister Plenipotentiary, to Lord William Grenville, Foreign Secretary (June 28, 1795), British National Archives, Fo 5/9.

75 Id.

76 Id.

77 Letter from Edmund Randolph to George Hammond, July 6, 1795, U.S. National Archives II, Department of State Records of “Miscellaneous Correspondence—Domestic Letters,” Microfilm M40, Roll 8.

78 See Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, at 420-26 (1993).

79 Letter from George Hammond, His Majesty’s Minister Plenipotentiary, to Lord William Grenville, Foreign Secretary (July 18, 1795), British National Archives, FO 5/9.

80 Bradford opinion, supra note 1, at 58.

81 Macaulay/Tilley memorial, supra note 11.

82 Article VII of the treaty stated that “[t]here shall be a firm and perpetual peace between his Britannic Majesty and the said states, and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea and land shall from henceforth cease.” Definitive Treaty of Peace, U.S.-Gr. Brit., Art. VII, Sept. 3, 1783, 8 Stat. 80. While acknowledging that Bradford’s reference may have been to the peace treaty, Tom Lee suggests that Bradford was actually referring to the Jay Treaty. Lee, Thomas H., The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 891-92 (2006)Google Scholar. That seems unlikely, though, since the Jay Treaty was not in effect at the time of the Sierra Leone attack and, when Bradford wrote his opinion, had not yet been ratified by either the United States or Great Britain. In any event, the issue is not material to this essay.

83 As noted above, in his communication with John Jay in London, Lord Grenville remarked that U.S. citizens taking part in hostilities should perhaps be tried as pirates, although he seemed to have in mind British rather than U.S. prosecutions. In his journal, Macaulay also noted that he thought that if Mariner were apprehended, he might be subject to being tried as a pirate. Life and Letters of Zachary Macaulay, supra note 64, at 70-71. Neither item appears to have been before Bradford, however, when he wrote his opinion.

84 1 Stat. 381, 384 (1794).

85 Hammond letter, supra note 11.

86 Bradford opinion, supra note 1, at 58.

87 U.S. Const. Art. Ill, §2, cl. 1 (stating that the judicial power shall extend to “controversies. . . between a state, or the Citizens thereof, and foreign states, Citizens or subjects”).

88 During the original argument before the Supreme Court in Kiobel, Justice Alito inquired about the Article III basis for an ATS suit between aliens. Transcript of Oral Argument, supra note 9, at 51.

89 See, e.g., Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800).

90 U.S. Const. Art. III, §2, cl. I (stating that the judicial power shall extend to “all Cases affecting Ambassadots, other public Ministers and Consuls” and “all Cases of admiralty and maritime Jurisdiction”).

91 For an extended consideration of this question, along with a suggestion that the ATS was intended to implement diversity jurisdiction, see Bradley, Curtis A., The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587 (2002)Google Scholar. For responses, see Collins, Michael G., The Diversity Theory of the Alien Tort Statute, 42 Va. J. Int’Ll. 649 (2002)Google Scholar, and William S. Dodge, , The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002)Google Scholar; see also Bellia, Anthony J. Jr. & Clark, Bradford R., The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 526 n.377 (2011)Google Scholar (agreeing with the diversity interpretation of the ATS); Sarei v. Rio Tinto PLC, 671 F.3d 736, 824 (9th Cir. 2011) (Ikuta, J., dissenting) (same).

92 See, e.g., Fletcher, William A., International Human Rights in American Courts, 93 Va. L. Rev. 653, 671 (2007)Google Scholar (“[C]ustomary international law in the nineteenth century was general rather than federal law.”); Jay, Stewart, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 832 (1989)Google Scholar (“The law of nations was classified as ‘general law’ in the sense that Swift v. Tyson later employed the term.”); Young, Ernest A., Sorting Out the Debate over Customary International Law, 42 Va. J. Int’l L. 365, 374 (2002)Google Scholar (“Almost all participants in current debates over customary international law appear to agree that, prior to the Supreme Court’s decision in Erie Railroad Co. v. Tompkins, that law had the status of ‘general’ law.”).

93 American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 545 (1828).

94 See, e.g., New York Life Ins. Co. v. Hendren, 92 U.S. 286, 286-87 (1876) (holding that the Court lacked jurisdiction to review issues concerning “the general laws of war, as recognized by the law of nations” because such issues did not involve “the constitution, laws, treaties, or executive proclamations, of the United States” but rather concerned only “principles of general law alone”).

95 See Bradley, supra note 91, at 606-08 (documenting these statements); see also Belliajr, Anthony J.. & Clark, Bradford R., The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 35 (2009)Google Scholar (“The framing and ratification of [Articles III and VI of the Constitution] lend support to the argument that ‘Laws’ meant acts of Congress, not forms of customary law, including the customary law of nations.”).

96 3 Joseph Story, Commentames on the Constitution of the United States §1641 (1833); see also, e.g., Du Ponceau, Peter S., A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States 99 (1824)Google Scholar (observing that in adopting the phrase “Laws of the United States” in Article III, “the framers of the Constitution only meant the statutes which should be enacted by the national Legislature”).

97 Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004).

98 Id. at 732 (emphasis added).

99 See, e.g., Bradley et al., supra note 53, at 895 (“[T]he Court [in Sosa] inferred, from a jurisdictional statute that enabled courts to apply CIL as general common law, the authorization for courts to create causes of action for CIL violations, in narrow circumstances, as a matter of post-Erie federal common law.”); Ramsey, supra note 22, at 298 (“According to the Court [in Sosa], Congress in the ATS established federal jurisdiction for international claims, with the understanding that federal courts were empowered in some circumstances to create a federal common law cause of action for private litigants.”); cf. Sarei v. Rio Tinto PLC, 671 F.3d 736, 752 (9th Cir. 2011) (“[I]t is by now widely recognized that the norms Sosa recognizes as actionable under the ATS begin as part of international law—which, without more, would not be considered federal law for Article III purposes—but they become federal common law once recognized to have the particular characteristics required to be enforceable under the ATS.”).

100 Cf. Illinois v. Milwaukee, 406 U.S. 91, 100 (1972) (“[Section] 1331 [federal question] jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.”); see also Bradley et al., supra note 53, at 906 n.204 (“This Article III problem is addressed, however, if the claim has the status of federal common law, because federal common law (unlike general common law) is considered part of the ‘Laws of the United States’ for purposes of Article III.”); Vázquez, Carlos M., Alien Tort Chims and the Status of Customary International Law, 106 AJIL 447, 535 (2012)Google Scholar (contending that “the Article III question is a simple one in light of the Court’s holding in Sosa that the cause of action in suits brought under section 1350 is supplied by federal common law”).

101 See McGinnis, John O., Sosa and the Derivation of Customary International Law , in International Law in the U.S. Supreme Court: Continuity and Change 481, 482 (Sloss, David L., Ramsey, Michael D. & Dodge, William S. eds., 2011 CrossRefGoogle Scholar) (“Sosa thus suggests that the content of international law in American jurisprudence will be viewed through the imperatives of American jurisprudence, not simply those of international jurisprudence, making the domestic version of international law a parochial one.”). For an argument that federal common law should be understood as applying to all aspects of ATS litigation, “with certain aspects of ATS litigation governed by federal common law that is tightly linked to international law, other aspects governed by federal common law that is not derived from international norms, and still others that fall somewhere in between,” see Wuerth, Ingrid, The Alien Tort Statute and Federal Common Law: A New Approach, 85 Notre Dame L. Rev. 1931, 1933 (2010 Google Scholar).

102 Hammond letter, supra note 11.

103 Macaulay/Tilley memorial, supra note 11.

104 Id.

105 Bradford opinion, supra note 1, at 58.

106 Macaulay/Tilley memorial, supra note 11.

107 Blackstone distinguished between “principals” and “accessories. “ See Blackstone, supra note 17, at 34-35. A principal “in the first degree,” according to Blackstone “is the actor, or absolute perpetrator of the crime.” A principal “in the second degree” is “present, aiding, and abetting the fact to be done.” by contrast, an accessory “is not the chief actor in the offence, nor present at it’s [sic] performance, but is someway concerned therein, either before or after the fact committed.” Under Blackstone’s analysis, the U.S. citizens involved in the attack on Sierra Leone would be considered principals, not accessories.

108 Consider, by contrast, Talbot v. Janson, 3 U.S. (3 Dall.) 133 (1795), an admiralty case decided shortly after Bradford’s opinion. There, the Supreme Court held that a French citizen was not entitled to retain a Dutch ship as a prize because (among other things) he had acted in concert with a U.S. citizen in taking the ship and had thereby “abetted” a violation of both a treaty between the United States and Holland, and the law of nations governing neutrality. See id. at 156 (Paterson, J.); id. at 167 (Iredell, J.).

109 By linking the ATS to violations of the international law of neutrality, these materials might also call into question the Supreme Court’s suggestion in Sosa that the ATS historically encompassed only three law of nations claims (for offenses against ambassadors, violations of safe conducts, and piracy). See Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004). It should be noted, however, that the breach of neutrality that Bradford was addressing implicated a treaty, whereas the Court in Sosa was discussing only the historic claims under the unwritten law of nations.

110 J. J. Burlamaqui, The Principles of Politic Law, pt. IV, ch. vii, at 290 (1748) (Thomas Nugent trans., 1752).

111 Emmerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, bk. III, ch. ix, §164 (1758) (Charles G. Fenwick trans., 1916); see also Wayne Sandholtz, Prohibiting Plunder: How Norms Change (2007) (discussing how norms against plunder developed after this time period). Citations to Vattel for this and other doctrinal propositions do not require acceptance of Vattel’s particular jurisprudential approach to international law. Cf. Richardson, Brian, The Use of Vattel in the American Law of Nations, 106 AJIL 447 (2012)Google Scholar.

112 Blackstone stated, for example, that “where the individuals of any state violate this general law [of nations], it is then the interest as well as duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained.” Blackstone, supra note 17, at 68. Vattel similarly stated that a “sovereign who refuses to repair the evil done by one of his subjects, or to punish the criminal, or, finally, to deliver him up, makes himself in a way an accessory to the deed, and becomes responsible for it.” Vat Tel, supra note 111, bk. II, ch. iv, §77; see also, e.g., Burlamaqui, supra note 110, pt. IV, ch. iii, at 255 (discussing responsibilities of nations for the conduct of their citizens); Samuel Pufendorf, De Jure Naturae et Gentium, bk. VIII, ch. vi, §12 (1688) (C. H. Oldfather & W. A. Oldfather trans., 1934) (same).

113 See, e.g., Bellia & Clark, supra note 91, at 448-49; Lee, supra note 82, at 883; Rogers, John M., The Alien Tort Statute and How Individuak “Violate” International Law, 21 Vand. J. Transnat’l L. 47, 48-60 (1988)Google Scholar; see also Ali Shan v. Palestinian Auth., 642 F.3d 1088, 1099 (D.C. Cir. 2011) (Williams, J., concurring) (“The concern was that U.S. citizens might engage in incidents that could embroil the young nation in war and jeopardize its status or welfare in the Westphalian system. Similarly, foreign violators, if sufficiently linked to the United States, could create an incident threatening the United States’s peace.”).

114 Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004). The executive branch recently emphasized the potential link between the ATS and U.S. responsibility under international law in its supplemental brief in the Kiobel case. See Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, supra note 30, at 3 (“Courts . . . should be guided at least in general terms by the legislative purpose to permit a tort remedy in federal court for law-of-nations violations for which the aggrieved foreign nation could hold the United States accountable, which is an important touchstone for determining whether U.S. courts should be deemed responsible for affording a remedy under U.S. law.”).

115 Hammond letter, supra note 11.

116 The proprietors of Bance Island, John and Alexander Anderson, were not satisfied. In November 1796, they wrote to Lord Grenville in an effort to have the British government seek reparations on their behalf from the United States, possibly through arbitration under one of the commissions established by the Jay Treaty. The Andersons argued that the possibility of bringing a civil claim was “elusory,”

not only because they are advised and conceive that it is doubtful whether Injuries committed in the manner and under the circumstances herein complained of by your Memorialists can be cognizable before any civil tribunal, but also because they find upon enquiry (even admitting that their case may be so cognizable by the peculiar Institutions of the American Law) that a recourse to that Law would in the end prove nugatory, because the Individuals concerned so far from being in circumstances to answer damages to the extent of the Loss which they have unjustly and wantonly occasioned to your Memorialists are in fact in Insolvence and desperate circumstances.

Memorial of John Anderson and Alexander Anderson, Nov. 25, 1796, British National Archives, FO 5/17.