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Published online by Cambridge University Press: 27 February 2017
Considerable ink has been spilt on the subject of 28 U.S.C. §1350, the Alien Tort Statute. My limited purposes here are to address Anne-Marie Burley’s appealing analysis of the statute presented in the last issue of the Journal and to draw attention to significant legislation that casts additional light on the framing of the statute. My comments relate to Oliver Ellsworth, the drafter of section 1350 and the most influential senator in the First Congress, which enacted the Alien Tort Statute.
1 See, e.g., Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467 (1986).
2 Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AJ1L 461 (1989).
3 In the first Senate, Ellsworth “was a shrewder political operator than all the others combined.” F. Mcdonald, The Presidency of George Washington 31 (1974).
4 See Casto, Oliver Ellsworth and the Role of Religion in the Early Republic (forthcoming).
5 Missionary Society of Connecticut, A Summary of Christian Doctrine and Practice: Designed Especially for the use of the People in the New Settlements of the United States of America, ch. XX, ¶3 (1804).
6 See Casto, supra note 4.
7 4 The Public Records of the State of Connecticut for the Year 1782, at 156–57 (L. Labaree ed. 1942) [hereinafter Public Records]. I have searched the Connecticut State Archives and found no manuscript records of the passage of this Act. The only archival record is its appearance in the official 1784 compilation of the state’s laws. Acts and Laws of the State of Connecticut in America 82–83 (R. Sherman & R. Law eds. 1784). The Act’s title in the 1784 compilation is “An Act for securing to Foreigners in this State, their Rights, according to the Laws of Nations, and to prevent any Infractions of said Laws.” Id. at 82. The Act was still in effect in 1796. See Acts and Laws of the State of Connecticut in America 211–12 (1796).
8 4 Public Records, supra note 7, at 130.
9 Id. at 156.
10 Id.
11 Id. at 156–57 (1st and 3d unnumbered sections of the Act).
12 Id. at 157 (final unnumbered section) (emphasis added).
13 See Casto, supra note 1, at 489.
14 See Casto, supra note 1.
15 Of course, the very existence of the statute necessarily implies the existence of some substantive claims encompassed by the statute. See id. at 478–86.