The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum held that the presumption against extraterritoriality applies to common law causes of action under the ATS, and that there is no evidence the First Congress had intended the ATS to confer jurisdiction over extraterritorial torts. The Court’s conclusion was based, in part, on the claim that the ATS had been specifically enacted in response to two “domestic” breaches of international law: that of the Marbois-Longchamps Affair and the arrest of a servant in Ambassador Van Berckel’s household:
Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps [sic], 1 Dall. 111 (O. T. Phila. 1784)
Because there are two known domestic incidents that contributed to the ATS’s enactment, the Court held, the First Congress must have had in mind only domestic causes of action under the ATS:
These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.
As an initial matter, it is questionable whether these two incidents can be said to have encompassed the totality of the First Congress’ concerns with infractions of the law of nations. Even accepting that premise, however, the Court’s conclusion is misguided for another reason: the case of Respublica v. De Longchamps, as its contemporaries understood it, was a case involving extraterritorial application of the law.
Although Kiobel was correct that the Longchamps case involved “a French adventurer verbally and physically assaulted [Secretary] Marbois,” the Court’s summary description of the case conflates the two separate charges that were brought against the defendant. It was only the verbal assault that fell afoul of the laws of nation, as the charge for the physical assault was not under international law, but under municipal law:
Longchamps was initially charged with two counts: (1) “unlawfully and violently threatening and menacing bodily harm and violence to the person of the honorable Francis-Barbe De Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion-house of the Minister Plenipotentiary of France,” and (2) “for an Assault and Battery committed upon the said Secretary and Consul, in a public street in the City of Philadelphia.”
One of the reasons that the Marbois Affair caused so much diplomatic unease is due to the fact that Longchamps’ violation of the law of nations occurred not on the street, as Longchamps’ assault had, but in the hotel of the minister plenipotentiary of France. There was a great deal of uncertainty among both members of the Federal Congress and the government of Pennsylvania as to whether such an offense was cognizable by a Pennsylvanian court.
In contrast to the international law violation, the charge against Longchamps for assault and battery was never legally in doubt. Although factually there is some disagreement as to whether or not Marbois was the true aggressor, as a legal matter, the offence of assault and battery on a public street was legally straight forward, as it was unquestionably a crime under the municipal law.
But the assault and battery on Marbois wasn’t the source of the diplomatic strife– it wasn’t the offense to Marbois that caused the Framers’ a foreign relations headache, but rather the offense to the Chevalier de la Luzerne, the French Ambassador. Two days prior to the events resulting in the assault and battery charge, Longchamps had gone into the French minister plenipotentiary’s house and gotten into a verbal altercation with Marbois. The insulting language Longchamps used was, apparently, quite scandalous, or at least it was by French standards. The specific insult Longchamps was said to have made to Secretary Marbois was, “I will dishonor you, you naughty rascal!”
And it was this insult — or rather, the location where it took place — that was the real point of contention. Such an act was deemed a violation of the laws of nations, and French minister Luzerne wanted recompense. As a result of the insult to the French nation’s honor, Luzerne — and also his friend, Van Berckel, the Dutch minister, who would later be involved in the 1787 event also cited by Kiobel – threatened to remove their respective legations from Philadelphia if the U.S. failed to take appropriate action against Longchamps under the laws of nations.
In fact, at Longchamps’ trial in July of 1784, it initially seemed that only the assault charge under municipal law would stand, as the jury originally found Longchamps to be guilty of only that offense. After a little bit of coaxing from the judges, however, the jury finally got it right, and convicted him of violating both the law of Pennsylvania and the law of nations:
The Jury, at first, found the defendant guilty of the Assault only; but, the Court desiring them to re-consider the matter, they returned with a verdict against him on both Counts.
Longchamps’ defense attorneys contested the validity of the count for violation of the law of nations, arguing that only the municipal law of Pennsylvania could apply, as that was where the offense was committed. This claim was rejected by the Supreme Court of Pennsylvania, and at Longchamps’ sentencing, it was held that the law of nations — and not the municipal law of Pennsylvania — was to apply to the offense, because it had occurred exterritorially to the laws of Pennsylvania:
It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania; and, if the offences charged in the indictment have been committed, there can be no doubt, that those laws have been violated. The words used in the Minister’s house, (which is to be considered as a Foreign Domicil, where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend) may be compared to the same words applied to the Judges, in a Court of Justice, where they sit in representation of the majesty of the People, of Pennsylvania.
The Pennsylvania Supreme Court’s decision was based on then-existing conceptions of the inviolability of the premises of a foreign minister. Although the doctrine would become extinguished shortly thereafter, in the 18th century the concept of the Franchise de l’hôtel was still in effect. Under this doctrine, a foreign minister’s dwelling, or domicile, was conceived to be “extra-territorial” to the nation where it sat. The laws of the host state did not enter or apply to the minister’s domicile, and the host sovereign could not exercise jurisdiction — civil or criminal — over acts which occurred within it, as the foreign minister’s hotel was considered to be under the jurisdiction and sovereignty of his home state.
Unsurprisingly, this lead to a great deal of abuse by ambassadors, who used their privileged status to grow rich by shielding criminals and smugglers of all types. In fact, in the 16th and 17th centuries, prior to the more limited Franchise de l’hôtel, the law of nations recognized the more expansive Franchise du quartier – the right of the ambassador to claim privileged status over his entire city quarter. Under the Franchise du quartier, Ambassadors could, from their residences, grant asylum, enter into contracts, or try and execute servants for criminal violations, all under the law of the sovereign nation to which the embassy belonged.
By the late 18th century, the extent of a foreign minister’s exterritoriality had diminished from its earlier peak. The modern view — which is that foreign embassies are entitled to an extensive list of privileges and immunities, but are nevertheless within the territorial sovereignty of the nation in which they are located — was not yet fully established. And at the time of Longchamps’ trial, the Pennsylvanian authorities, the French legation, and the Federal government were all very much aware of the exterritoriality of Longchamps’ crime. In requesting advice from Congress on how to proceed against Longchamps, the Supreme Executive Counsel of Pennsylvania specified that the offense had occurred “in the hotel of the Minister of France,” finding significant import in the location of the infraction. Luzerne also made much of the location of the insult, and used that to justify his claim of entitlement to exercise jurisdiction over the offense, and his request Longchamps ought be repatriated to France so that he could be prosecuted there.
Although France’s extradition request was denied, Chief Justice McKean ultimately agreed with Pennsylvania’s Attorney General, William Bradford. Bradford argued, on behalf of the prosecution, that Longchamps’ insults were an offense against the law of nations, and that Pennsylvania’s law did not apply to that offense, as it had occurred “where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend.” The Supreme Court of Pennsylvania apparently accepted this argument, and also fully adopted Bradford’s argument that “the law of nations, which makes part of the common law of all nations, requires no particular forms of legal proceedings, but always adopts those of the municipal laws of the different countries of where it is in force.” The court accordingly found that the charge against Longchamps under international law could be sustained in Pennsylvania’s state courts.
Bradford, as the Attorney General for the United States, would also later reaffirm the view that a foreign minister’s dwelling-house was extraterritorial to the jurisdiction of the state where it was located. In his Opinion of June 24, 1794, at 1 Op. 47, Bradford noted that, unlike an ambassador’s dwelling, a foreign warship in the United States’ territorial waters was subject to that state’s jurisdiction: “[t]he commander of a foreign ship-of-war … cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.” This decision echoes the language used in Respublica v. Longchamps, and suggests that Supreme Court in Kiobel was mistaken in deeming that particular case to have “involved conduct within the Union.”
-Susan
